In Garnier v. O’Connor-Ratcliff,[1] the Ninth Circuit Court of Appeals determined that members of a school district’s board of trustees acted under color state law by using their social media pages as public forums in carrying out their official duties. Then, applying First Amendment public forum criteria, the Court concluded that restrictions on certain individuals were not appropriately tailored to serve a significant governmental interest.
Background
Elected officials nationwide increasingly rely on social media both to promote their campaigns and, after election, to communicate with constituents and seek their input in carrying out their duties as public officials. Michelle O’Connor-Ratcliff and T.J. Zane successfully ran for election to the Poway Unified School District (“PUSD” or the “District”) Board of Trustees in November 2014, positions they still held as of the time of this case. In addition to their private Facebook pages, which they shared only with family and friends, O’Connor-Ratcliff and Zane (together, “the Trustees”) created public Facebook pages to promote their political campaigns. In 2016, O’Connor-Ratcliff also created a public Twitter page related to her activities as a PUSD trustee.
Only the Trustees could create original “posts” on their public Facebook pages. Members of the public who chose to like or follow the public pages were able to post “comments” beneath the Trustees’ posts. Viewers could also register non-verbal emoticon “reactions” to posts, such as a “thumbs-up” reaction to “like” the post, a heart, or an angry face.
Both Facebook and Twitter provide the Trustees with some ability to moderate the content of comments on their pages. Although the Trustees cannot turn off comments on either platform, they can “delete” or “hide” individual comments, thereby removing them entirely or making them visible only to the Trustee and the person who posted the comment.[2] The Trustees can also limit verbal comments by using Facebook’s “word filter” function, which allows a page owner to create a list of words that, if used in a comment, will prevent the comment from appearing beneath the page owner’s post.
The Trustees can also “block” Facebook and Twitter users. Blocking a Facebook user prevents that user from commenting on or registering a non-verbal reaction to the posts on the blocker’s page, but the user is still able to continue viewing the public Facebook page. In contrast, on Twitter, once a user has been “blocked,” the individual can neither interact with nor view the blocker’s Twitter feed.
Although before assuming office, the Trustees originally used their social media pages to promote their campaigns, they continued to use those pages to post content related to PUSD business and the activities of the Board after winning their elections. In the “About” section of her public Facebook page, O’Connor-Ratcliff described herself as a “Government Official,” listed her “Current Office” as President of the PUSD Board of Education, and provided a link to her PUSD official email address. Zane titled his Facebook page “T.J. Zane, Poway Unified School District Trustee,” and in the “About” section, he described his Facebook as “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.” Zane also described himself as a “Government Official,” and he described his interests as including “being accessible and accountable; retaining quality teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety.”
Some of the Trustees’ posts described visits to PUSD’s schools, promoted the achievements of the District’s students and teachers, and reported on PUSD Board-related business. The Trustees also posted information about PUSD’s Local Control Accountability Plan (“LCAP”)—a three-year budgetary plan required by California law “that describes the goals, actions, services, and expenditures to support positive student outcomes that address state and local priorities.” In those posts, the Trustees invited the public to fill out surveys related to the formulation process of the LCAP plan, shared information about in-person community forums related to LCAP planning and reported on the plans ultimately adopted by the Board. Additionally, the Trustees posted about the PUSD Board’s superintendent hiring and firing decisions, including announcing the Board’s decision to terminate the Superintendent at the time, inviting members of the public to fill out online surveys and attend community fora regarding the selection of a new superintendent, and providing updates regarding superintendent applicants and the ultimate hiring decision.
Neither of the Trustees set forth any rules of etiquette or decorum regulating how the public was to interact with their social media accounts. There were, for example, no size or subject limits set for comments.
Two parents of children in the School District, Christopher and Kimberly Garnier, frequently left comments critical of the Trustees and the Board on the Trustees’ pages, sometimes posting the same long criticisms repeatedly. As an example, Christopher Garnier posted nearly identical comments on 42 separate posts O’Connor-Ratcliff made to her Facebook page. On one occasion, within approximately ten minutes, Christopher Garnier posted 226 identical replies to O’Connor-Ratcliff’s Twitter page, one to each Tweet O’Connor-Ratcliff had ever written on her public account. The Garniers’ social media comments did not use profanity or threaten physical harm, and almost all of their comments related to PUSD.
The Trustees deleted or hid the Garniers’ repetitive comments initially. Around October 2017, O’Connor-Ratcliff blocked both the Garniers from her Facebook page and blocked Christopher Garnier from her Twitter page. Zane likewise blocked the Garniers from his Facebook page.
Sometime after they blocked the Garniers, the Trustees began using Facebook’s “word filter” feature effectively to preclude all verbal comments on their public pages. The Trustees’ use of word filters as a practical matter eliminated all new verbal comments from the Facebook posts but did not affect viewers’ abilities to register nonverbal reactions, such as “liking” their posts with a thumbs-up symbol or selecting another one of Facebook’s reaction buttons. Because they were blocked, the Garniers were unable to leave these nonverbal reactions on the Trustees’ Facebook pages.
The Garniers sued under 42 U.S.C. section 1983, seeking damages and declaratory and injunctive relief. The Garniers asserted that the Trustees’ social media pages constituted public fora and that, by blocking them from the pages, the Trustees violated the Garniers’ First Amendment rights. The Trustees moved for summary judgment. The District Court granted the Trustees qualified immunity as to the Garniers’ damages claims but otherwise permitted the case to proceed. After a bench trial, the District Court agreed with the Garniers that their First Amendment rights had been violated. The Trustees appealed, challenging the judgment.
Discussion
The Ninth Circuit Court of Appeals stated that the Garniers’ claims presented an issue of first impression in the Circuit: whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.
On appeal, the Trustees argued that they closed any public forums they may have created on their social media pages by blocking almost all comments on their posts through the use of word filters, mooting the dispute; that creating, maintaining, and blocking the Garniers from their social media accounts did not constitute state action under Section 1983; and that, in any event, blocking them indefinitely was a narrowly tailored time, place, or manner restriction.
The Court first rejected the Trustees’ mootness contention because (1) using a word filter on Facebook would not affect plaintiff Christopher Garnier’s claims involving being blocked from Twitter; (2) the word filter limit did not change Facebook’s non-verbal “reaction” feature, which was inaccessible to individuals who were blocked from Facebook; and (3) the Trustees failed to carry their burden of showing they would not, in the future, remove the word filters from their Facebook pages and again open those pages up for verbal comments from the public. See Fikre v. FBI, 904 F.3d 1033, 1038, 1039 (9th Cir. 2018).
State Action
The Ninth Circuit explained that “[t]he purpose of [Section] 1983 is to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights.” McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000). The Court explained that the Ninth Circuit had recognized “at least four different criteria, or tests, used to identify state action,” the satisfaction of any one of which “is sufficient to find state action, so long as no countervailing factor exists.” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)), cert. denied, 142 S. Ct. 69 (2021). For each of the tests,[3] “the central question [is] whether ‘the alleged infringement of federal rights [is] fairly attributable to the government.’” Id. at 1096 (alteration in original) (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). The Court decided that the “nexus test” most closely fit the facts of the case here. The nexus test, the Court explained, is applicable 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,” Id. at 1094-95 (quoting Brentwood, 531 U.S. at 295).
The Court concluded that the Trustees’ use of their social media pages qualified as state action under Section 1983. First, the Trustees identified themselves on their Facebook pages as “government official[s],” and listed their official titles in prominent places on both their Facebook and Twitter pages. The content of the Trustees’ pages was primarily about providing information to the public about the PUSD Board’s official activities and soliciting input from the public on policy issues relevant to Board decisions. The Trustees regularly posted about school board meetings, surveys related to school district policy decisions, the superintendent hiring process, budget planning, and public safety issues. Thus, both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public about the work of the PUSD Board.
The Court also stated that the Trustees’ management of their social media pages “related in some meaningful way” to their “governmental status” and “to the performance of [their] duties.” Naffe, 789 F.3d at 1037 (quoting Anderson, 451 F.3d at 1069).
Moreover, the Trustees’ blocking of the Garniers from their social media pages was connected to events which arose out of the Trustees’ official status. The Garniers’ comments, though repetitive, dealt mainly with issues related to the PUSD Board’s governance of the District, including concerns about racial disparities in suspension rates and allegations of financial wrongdoing by the PUSD Superintendent at the time. The Trustees’ stated reasons for blocking the Garniers were that the Garniers’ comments, in their view, tended to “fill up the page,” and detract from the messages they wished to communicate in their posts, many of which pertained to “the performance of [their] official duties.” Naffe, 789 F.3d at 1036 (quoting Anderson, 451 F.3d at 1069). Thus, because the Trustees presented and administered their social media pages as official organs for carrying out their PUSD Board duties, the Trustees’ decision to block the Garniers for allegedly interfering with that use of the social media pages “related in some meaningful way either to the [Trustees’] governmental status or to the performance of [their] duties.” Id. at 1037 (quoting Anderson, 451 F.3d at 1069).
The Court thus held that the Trustees’ maintenance of their social media pages, including the decision to block the Garniers from those pages, constituted state action under Section 1983.
First Amendment
Having concluded that the Trustees were state actors, the Ninth Circuit considered whether the Trustees violated the First Amendment in blocking the Garniers on the Trustees’ social media sites.
The Court explained that where the government has made a forum available for use by the public and has no policy or practice of regulating the content posted to that forum, it has created a designated public forum.[4] The Court observed that before the Trustees began using word filters, their social media pages were open and available to the public without any restriction on the form or content of comments. Moreover, the Trustees occasionally solicited feedback from constituents through their posts and responded to individuals who left comments. Although the Trustees eventually began deleting or hiding some lengthy or repetitive comments, they never adopted any formal rules of decorum or etiquette for their pages that would be sufficiently definite and objective to prevent arbitrary or discriminatory enforcement. The Court determined that before the Trustees began using word filters, the interactive portions of the Trustees’ Facebook pages were designated public forums, as was O’Connor-Ratcliff’s Twitter page.
The Court of Appeals found that the Trustees’ decision to block the Garniers from the designated public fora did not advance a significant governmental interest. The Court found that comments did not, as the Trustees asserted, have the effect of “pushing down anything” that they posted or meaningfully distracting from the “streamlined, bulletin board” appearance the Trustees said they wanted for their social media pages. The Court concluded that there was no evidence that the Garniers’ repetitive comments “actually disturb[ed] or imped[ed]” the Trustees’ posts or prevented other viewers of the Trustees’ accounts from engaging in discussion. Norse v. City of Santa Cruz, 629 F.3d 966, 976 (9th Cir. 2010) (en banc).
Even if the Garniers’ comments did interfere with the Trustees’ interests in facilitating discussion or avoiding disruption on their social media pages, the Ninth Circuit concluded that the Trustees’ decision to block the Garniers “burden[ed] substantially more speech than is necessary” and therefore was not narrowly tailored.[5] The Court explained that blocking the Garniers did not stop them from leaving only long, repetitive comments. The blocking prevented them from leaving any comments, no matter how short, relevant, or non-duplicative they might be.
Facebook Word Filter Change
Sometime after blocking the Garniers from their Facebook pages, the Trustees’ used Facebook’s word filters that prohibited comments and restricted users to non-verbal reactions. The Court deemed the Trustees’ Facebook pages while using word filters in this way to be “limited public forums.” In a limited public forum, restrictions on speech and speakers are permissible so long as they are “viewpoint neutral and reasonable in light of the purpose served by the forum.” Hopper, 241 F.3d at 1074-1075 (quoting DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999)). The standards for inclusion and exclusion for a limited public forum must be unambiguous and definite; without objective standards, government officials may use their discretion as a pretext for censorship.
The Ninth Circuit concluded that given their implementation of word filters, the Trustees’ continued ban of the Garniers served no purpose at all relating to the Garniers’ repetitive comments. The Trustees’ extensive word filters prevented everyone, including the Garniers from commenting on their Facebook posts. Thus, the only impact of blocking the Garniers when the word filters were applied and thereafter was that it prevented the Garniers from registering non-verbal emoticon reactions to the Trustees’ posts, for which the Trustees had not asserted any interest in limiting. Because blocking the Garniers from their Facebook pages, in their present form, added nothing to the Trustees’ goal of eliminating comments on their posts, the Court found that restriction was not reasonable in light of the purpose served by the forum.
In sum, the Ninth Circuit concluded that the Trustees’ Facebook pages, before the implementation of word filters on Facebook, constituted designated public forums, and O’Connor-Ratcliff’s Twitter page was still a designated public forum. With the addition of word filters that prohibit comments and restrict users to non-verbal reactions, the Trustees’ Facebook pages were limited public forums. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s bench trial judgment in favor of plaintiffs.
HOW THIS AFFECTS YOUR AGENCY
Although the Ninth Circuit concluded that the Trustees acted under color of state law in this case, the Court emphasized that “finding state action ‘is a process of “sifting facts and weighing circumstances.”’ Gritchen, 254 F.3d at 813 (quoting McDade, 223 F.3d at 1139). Given the fact-sensitive nature of state action analyses, ‘not every social media account operated by a public official is a government account.’ Knight First Amend. Inst. at Colum. Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019), cert. granted, judgment vacated as moot sub nom. Biden v. Knight First Amend. Inst. at Colum. Univ., 141 S. Ct. 1220, 209 L. Ed. 2d 519 (2021). Rather, courts should look to considerations such as ‘how the official describes and uses the account,’ ‘to whom features of the account are made available,’ and how members of the public and government officials ‘regard and treat the account.’ Id. In this case, the pertinent factors, including the posts concerning the public’s business, all indicate that O’Connor-Ratcliff and Zane unequivocally ‘cloaked’ their social media accounts ‘with the authority of the state.’ Howerton v. Gabica, 708 F.2d 380, 384-85 (9th Cir. 1983). We hold that the Trustees acted under color of state law when they blocked the Garniers from their social media accounts.”
This decision highlights the fact that one maintaining such social media accounts should promulgate clear rules concerning posts and responses to posts on the accounts. As this constitutes a complex area of the law, one should definitely consult with their retained legal counsel to draft such policies and develop procedures to maintaining the social media accounts in such a manner so that constitutional rights are not violated.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.
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[1] 2022 U.S. App. LEXIS 20719 (9th Cir. July 27, 2022).
[2] At the time the plaintiffs here filed their lawsuit, Twitter did not permit users to hide other users’ replies to their Tweets without blocking those users entirely. Twitter adopted a reply-hiding feature in 2019.
[3] The Court explained that the tests include: the “public function test,” applicable when private individuals are “endowed by the State with powers or functions” that are “both traditionally and exclusively governmental” and therefore “become agencies or instrumentalities of the State,” Kirtley, supra, 326 F.3d at 1093 (quoting Lee v. Katz, 276 F.3d 550, 554-55 (9th Cir. 2002)); the “joint action test,” applicable when “the state has so far insinuated itself into a position of interdependence with the private entity that it must be recognized as a joint participant in the challenged activity,” Id. (quoting Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995)); the “compulsion test,” applicable when “the coercive influence or ‘significant encouragement’ of the state effectively converts a private action into a government action,” Id. at 1094 (quoting Sutton, supra, at 842); and the “nexus test,” which the Ninth Circuit applied here.
[4] Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001).
[5] Id., 491 U.S. at 799.