The Ninth Circuit Court of Appeals recently ruled in Garnier v. O’Connor-Ratcliffe that public officials violated their constituents’ First Amendment rights by blocking them from the public officials’ social media accounts that were used for official duties.
School District Trustees Block Two Parents on Social Media
In Garnier, Michelle O’Connor-Ratcliff and T.J. Zane, two members of the Poway Unified School District (PUSD) Board of Trustees (Board) used their social media pages to post content related to PUSD and Board activities. O’Connor-Ratcliffe described herself on Facebook as a “Government Official” and “President of the PUSD Board of Education” and included her official PUSD email address. Zane described himself as a “Government Official” and represented his Facebook account as “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.” Both used their social media pages to promote PUSD-related information and to solicit public feedback through their posts. Among the users who commented on the Trustees’ social media pages, were PUSD parents Christopher and Kimberly Garnier.
The Garniers frequently expressed their PUSD concerns in comments they posted to the Trustees’ social media accounts. At one point, Christopher Garnier posted 226 identical replies, one to each Tweet O’Connor-Ratcliff had posted. Frustrated by the Garniers’ repetitive commenting, both Trustees decided to block the Garniers from their respective Twitter and Facebook pages. In effect, the blocking prevented the Garniers from commenting on and reacting to the Trustees’ posts. In response, the Garniers filed suit under 42 U.S.C. § 1983 (the Civil Rights Act of 1871). The purpose of § 1983 is to deter government actors from using their badge of authority to deprive individuals their federally-guaranteed rights. [1] The Garniers alleged that the Trustees’ social media pages constituted a public forum and that by blocking their speech, the Trustees violated the First Amendment. The Trustees countered that blocking the Garniers’ speech from that forum was permissible as it was done pursuant to a sufficiently narrowly tailored restriction. The District court disagreed and found it was not narrowly tailored. The Trustees appealed and the case went to the Ninth Circuit Court of Appeals.
Acting Under the Color of State Law
To state a claim under §1983, a plaintiff must allege the violation of a federal right committed by someone acting under the color of state law.[2] One test to determine whether someone acted under the color of state law, is the “nexus test.” The Ninth Circuit followed the nexus test analysis used by the Second, Fourth, and Eighth Circuit appellate courts. This analysis is fact-sensitive and applies when there is “such a close nexus between the State and the challenged action, that the seemingly private behavior may be fairly treated as that of the State itself.”[3] As applied here, an off-duty public official uses their social media as an “organ of official business” when:
Using this test, the Ninth Circuit found that the Trustees acted under the color of law when they identified themselves on their social media accounts as “government officials,” and displayed their official titles, presented their PUSD email addresses, and described their accounts as official PUSD board member pages. In addition, the content on the Trustees’ pages were focused on providing official PUSD information and soliciting public input. The Trustees’ claimed they did not act under the color of law because their pages were not authorized by PUSD. The Court disagreed, finding that the Trustees’ pages lacked a disclaimer that their expressed opinions were personal, and not official, and that the pages displayed a “badge” to the public, signifying the page as an official PUSD Trustee account. In appearance and content, the Court found the Trustees held their pages out as official channels of PUSD communication.
As for the second prong, the Court found that by the Trustees presenting their social media pages as official outlets to facilitate their PUSD duties, this had the purpose and effect of influencing the behavior of others. Supporting this conclusion was the fact that both Trustees actively solicited constituent input and feedback about PUSD matters, and encouraged constituents to fill out Board surveys and apply for volunteer Board committees. According to the Court, the Trustees were able to receive this public engagement on their pages because they invoked their governmental status.
Lastly, the Court found that the harm inflicted upon the Garniers – being blocked – was linked to the Trustees’ performance of their duties. This is because the Trustees used their social media pages to communicate about PUSD and they did not want the Garniers’ comments to detract from their messages. Therefore, the Ninth Circuit concluded that the Trustees acted under the color of state law, which in turn meant their decision to block the Garniers constituted state action under § 1983.
The Blocking Feature’s Impact on Free Speech
The Ninth Circuit then turned to the First Amendment issues and analyzed whether the Trustees’ social media pages constituted a designated public forum. A designated public forum exists where the government intentionally opens up a nontraditional forum for public discourse.[5] In a designated forum, the government may impose reasonable restrictions on the time, place, and manner of protected speech so long as the restrictions are narrowly tailored to serve a significant government interest and leave open ample room for alternative channels of communication.[6]
First, the Court found the Trustees’ social media pages at the time of the blocking did constitute designated public forums. This is because their pages were open to the public without any restriction on the form or content of comments, and the Trustees both solicited and replied to comments on their pages. This is in contrast to being designated a limited public forum (a type of nonpublic forum that the government has intentionally opened to certain groups or topics), which the Trustees’ pages later transformed into when they utilized word filters to screen out certain comments.
Next, the Court analyzed whether the blocking restriction was narrowly tailored, such that it did not burden substantially more speech than necessary to further their interest.[7] The Court found the decision to block the Garniers was not narrowly tailored for two reasons: (1) it did not advance a significant government interest because, due to social media technology features, the Garniers’ repetitive comments did not actually disturb or impede the Trustees’ posts or prevent public engagement; and (2) blocking burdened substantially more speech than necessary because instead of restricting the length or repetitiveness of the Garniers’ comments, it entirely prevented the Garniers’ ability to comment on Facebook and view content on Twitter. According to the Court, alternative restrictions such as deleting or hiding unduly repetitive comments, or establishing rules of etiquette, would have had less of an impact on speech than blocking. Therefore, the Court ruled that the Trustees violated the Garniers’ First Amendment rights by blocking them from the Trustees’ social media accounts.
What This Means for Public Agencies
While the First Amendment does not apply to private organizations, it does apply to public agencies. Public agencies should examine their social media accounts, including the accounts of their public officials, because in addition to blocking, other social media practices and restrictions may also result in First Amendment free speech violations. If you have any questions regarding the First Amendment and best practices for social media, please reach out to trusted legal counsel.
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[1] McDade v. West (9th Cir. 2001) 223 F.3d 1135, 1139.
[2] West v. Atkins (1988) 487 U.S. 42, 48.
[3] Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n (2001) 531 U.S. 288, 295.
[4] Naffe v. Frey (9th Cir. 2015) 789 F.3d 1030, 1037.
[5] DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. (9th Cir. 1999) 196 F.3d 958, 964.)
[6] Ward v. Rock Against Racism (1989) 491 U.S. 781, 791.)
[7] Id. at 799.