IMPORTANCE OF STATEWIDE ISSUE:

Factual and Procedural Background: The plaintiffs and respondents, Christopher and Kimberly Garnier, were district parents who frequently left comments on the trustees’ Facebook and Twitter accounts. The comments were often long and critical, and the Garnier’s sometimes posted the same comments repeatedly. For example, on one occasion, Christopher Garnier posted 226 identical replies to O’Connor-Ratcliff’s Twitter page within 10 minutes. Though, the Garniers’ comments on the trustees’ accounts did not include profanity or threats of physical harm, often, they were repeated multiple times under one Facebook post and included posts that were not related to the subject matter of the post. At first, the trustees allowed the comments to stand, but, as the Garniers’ behavior escalated, the trustees hid or deleted the comments. Eventually, the trustees blocked the Garniers from being able to read and post on their Facebook profiles and trustee O’Connor-Ratcliff blocked Christopher Garnier on Twitter. The Garniers sued the trustees in federal court for violation of their First Amendment rights and for enforcement of their civil rights under Section 1983 of Title 42 of the United States Code (Section 1983). The district court held in favor of the Garniers on the question of the violation of the First Amendment, and the trustees appealed.

Ninth Circuit decision: The Ninth Circuit held in favor of the Garniers, though it found that the trustees had qualified immunity under the Eleventh Amendment and were, therefore, not obligated to pay damages. The Ninth Circuit’s opinion began with an analysis of Section 1983. In order to state a claim under Section 1983, plaintiffs are required to demonstrate that the violation at issue was “committed by someone acting under color of state law” or, in other words, acting within the scope of their public duties. While the trustees argued that they were not acting under color of state law because the district did not fund, support or require them to have social media pages, the court held the trustees “maintenance of their social media pages, including the decision to block the Garniers from those pages,” was state action. Citing prior precedent, the court noted that even “seemingly private behavior may be fairly treated as that of the State” if there is “a close nexus between the State and the challenged action.” The court held that, in this case, while the trustees were not required to have Facebook and Twitter accounts as part of their official duties, the use of the trustees’ accounts was “directly tied” to their duties based on how the trustees used the pages to facilitate the performance of their official duties, including the way the pages identified the trustees as board members and involved issues being considered by or acted upon by the board.

Having found that the trustees acted under color of state law, the court went on to find that, by blocking the Garniers from the social media accounts, the trustees violated the Garniers’ First Amendment rights. The trustees had created a designated public forum by making their Facebook and Twitter accounts available to the public but did not have a policy for regulating the public’s engagement. In its analysis, the court distinguished between a “designated public forum” and a “limited public forum,” which is a subset of the former. Because the social media accounts were designated public fora and not limited public fora, the trustees could have imposed reasonable time, place or manner restrictions that were narrowly tailored to serve a significant governmental interest and left open “ample alternative channels for communication of the information.” The court held that the decision to block the Garniers did not serve a governmental interest because the comments did not disrupt the trustees’ social media pages and prevent engagement with others. The court distinguished social media pages from in-person meetings for purposes of determining the level of permissible disruption, finding that unlike meetings where there is limited time and space available for public comment “the features of Facebook and Twitter rendered the Garniers’ repetitive comments only minimally distracting.” In addition, the court held that the decision to block the Garniers was not narrowly tailored because it “burden[ed] substantially more speech than necessary” in light of the fact that narrower alternatives than blocking access to the Garniers were available to the trustees such as deleting repetitive comments, setting word filters that would filter out certain comments, or establishing clear rules of etiquette for posts on their pages, including rules prohibiting lengthy, repetitive or off-topic comments.

Ultimately, the court found that the trustees were not liable to pay damages to the Garniers because they established immunity from liability under the Eleventh Amendment. Because this was a novel issue for the Ninth Circuit, the trustees were deemed to be immune from damages, as they could not have known their conduct violated a constitutional right.

Request for Certiorari: On Oct. 4, 2022, O’Connor-Ratcliff and Zane filed a Petition for Writ of Certiorari before the U.S. Supreme Court. The petition argued that the petitioners were not relying on any governmental authority nor carrying out any governmental duty when they blocked the Garnier’s, as it is undisputed by the parties that the accounts were created by the petitioners without any direction, funding, support or other involvement by their district. The petition also noted that there is a split in the federal circuit courts on this issue. Specifically, the Sixth Circuit held in Lindke v. Freed that a city manager “didn’t transform his personal Facebook page into official action by posting about his job” even though his Facebook page addressed city policies and included his official title and contact information. These were similar facts the Ninth Circuit relied on in finding that the petitioners’ Facebook pages constituted official governmental action. The Sixth Circuit relied on the fact that there was no government authority for the city manager’s Facebook page. The petition also argued the petitioners had a constitutionally protected right to speak on matters of public concern and that their communication on a Facebook page was equivalent to them making remarks at a private party and allowing participation in the conversation for members of the public in attendance at the party, not a communication clothed with the authority of state law. The petitioners also made a policy argument, stating that the Ninth Circuit’s state-action ruling will have the unintended consequence of creating less speech because public officials’ social media accounts will be overrun with “harassment, trolling, and hate speech.”

For their part, respondents disputed petitioners’ argument that there is split in the circuit courts and urged the Supreme Court not to grant certiorari. The respondents also argued that the petitioners acted under color of state law, and that case law supports the Ninth Circuit’s opinion that a public official is acting under color of state law “whenever they are doing their jobs, regardless of whether the challenged action was expected, permitted, or forbidden.” Therefore, the respondents argued, it is enough that the petitioners used their social media pages as a “primary way of interacting with their constituents…” On April 24, 2023, the Supreme Court granted certiorari.

“Society has a compelling interest in encouraging transparent communication from board of education members and in promoting engagement between trustees and their community. It also has as a duty to protect these elected officials from abusive behavior that could potentially chill their speech and reduce civic participation. CSBA’s Education Legal Alliance filed an amicus brief in support of the plaintiffs in the U.S. Supreme Court case of O’Connor-Ratcliff v. Garnier to defend these principles and affirm that an individual district or county board member’s moderation of their personal social media accounts does not qualify as state action.”