In Garnier v. O’Connor-Ratcliff,[1] the Ninth Circuit Court of Appeals held that a public official’s blocking of individuals on her social media accounts constituted state action under the standard set forth by the United States Supreme Court in Lindke v. Freed, 601 U.S. 187 (2024). The Court of Appeals concluded that the official possessed actual authority to speak on the State’s behalf and purported to exercise that authority in her social media account activity.
Background
Plaintiffs Christopher and Kimberly Garnier are parents of children who attend school in the Poway Unified School District. At the time of the events in this case, Michelle O’Connor-Ratcliff and T.J. Zane were members of the Poway Unified School District (“PUSD” or “the District”) Board of Trustees. Beginning during their 2014 campaigns for election to the Board and continuing through their time as Board members, O’Connor-Ratcliff and Zane (collectively, “the Trustees”) maintained public social media pages on Facebook and the site then known as Twitter. On those pages, the Trustees informed constituents about activities at PUSD schools and actions of the Board, invited the public to attend Board meetings, and solicited input about Board decisions.
Starting sometime in 2015, the Garnier’s, dissatisfied with the governance of PUSD schools, began frequently posting comments critical of the Trustees and the Board on the Trustees’ social media pages. The Garnier’s sometimes posted the same critical messages to the Trustees’ pages repeatedly. The Trustees deleted or hid the Garnier’s’ comments for a while. However, in October 2017, O’Connor-Ratcliff blocked both Garnier’s from her Facebook page and blocked Christopher Garnier from her Twitter page. Zane meanwhile blocked the Garnier’s from his Facebook page.
The Garnier’s filed an action against the Trustees and the District under 42 U.S.C. Section 1983, alleging that the Trustees’ social media pages constituted public fora and that, by blocking them, the Trustees violated the Garnier’s’ First Amendment rights. Following a bench trial, the District Court found in favor of the Garnier’s on their Section 1983 claim and entered an injunction ordering the Trustees to unblock the Garnier’s from their Facebook and Twitter pages. After the Trustees appealed, the Ninth Circuit Court of Appeals found that the Trustees’ social media accounts constituted public fora and that the decision to block the Garnier’s was not sufficiently tailored to a significant government interest. The Court of Appeals accordingly affirmed, holding that the Trustees acted under color of state law and violated the First Amendment in blocking the Garnier’s.
The Trustees then appealed to the United States Supreme Court, which granted their petition for a writ of certiorari and held oral argument. Thereafter, the Supreme Court decided Lindke v. Freed, 601 U.S. 187 (2024), in which the Court announced a new standard for determining when a public official’s social media activity constitutes state action. The same day it issued the opinion in Lindke, the Supreme Court vacated the Ninth Circuit’s previous judgment in the case and remanded to the Court of Appeals for proceeding consistent with Lindke because the Ninth Circuit had applied a different standard than that articulated in Lindke to answer whether the Trustees acted under color of state law.
Discussion
The Ninth Circuit explained that Lindke held that a public official’s social media activity constitutes state action for purposes of Section 1983 “only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” 601 U.S. at 198. The Court explained that the substantive issue before it on remand was whether, applying the standard set forth in Lindke, the Trustees acted under color of state law. The Court stated that if the Trustees did act under color of state law, its earlier substantive First Amendment holdings—that the Trustees’ social media accounts constituted public fora and that the decision to block the Garnier’s was not sufficiently tailored to a significant government interest—also remained binding.[2]
Regarding the first Lindke step, the Court explained that it is not sufficient that an official presents herself as possessing authority to speak on behalf of the state or appears to the public to do so. Lindke, 601 U.S. at 199. Instead, a public official’s social media activity is “attributable to the State” only if the official is “possessed of state authority” to speak on the state’s behalf. Id. (quoting Griffin v. Maryland, 378 U.S. 130, 135 (1964)). Moreover, “[t]he alleged censorship” challenged as unconstitutional “must be connected to speech on a matter within [the official’s] bailiwick.” Id.
For the first Lindke step, the Court found that California law and PUSD Board of Education bylaws established that O’Connor-Ratcliff “possessed actual authority to speak on the State’s behalf” regarding school district matters. The Court explained that California law empowers school boards to “[i]nform and make known to the citizens of the district, the educational programs and activities of the schools therein.”[3] PUSD Board bylaws “recognize that electronic communication is an efficient and convenient way for Board members to communicate and expedite the exchange of information within the district and with members of the public.”[4] The Court noted that O’Connor-Ratcliff was serving as the Board president when she blocked the Garnier’s from her social media pages, and the bylaws designated the Board president as one who could communicate public statements from the Board regarding district issues to community members. The bylaws thus confirmed O’Connor-Ratcliff’s authority to speak on behalf of the District, as bylaws—written regulations approved by the Board—are legitimate sources of authority under Lindke. O’Connor-Ratcliff therefore possessed actual authority to speak on behalf of the state. The Court added that the focus at Lindke‘s first step is on the authority of the individual official, not the official character of the social media account through which they speak; Lindke recognized the possibility that public officials may at times make official announcements on unofficial, and even otherwise exclusively personal, social media accounts.
Lindke‘s second step asks whether a public official “purported to exercise” their “authority to speak on the State’s behalf” when they “spoke on social media.” 601 U.S. at 198. The Ninth Circuit explained that Lindke‘s second step hinges on whether a public official “use[s] his speech in furtherance of his official responsibilities” or “invoke[s] his official authority” when speaking on social media. Id. at 201-02. Relevant to this determination is the “appearance and function” of a public official’s social media activity. Id. at 198.
The Ninth Circuit observed that considering an official’s social media accounts, Lindke explained that where an official’s account carries a label that it is a personal account or a disclaimer identifying the page’s content as reflecting only the official’s personal views, a public official is “entitled to a heavy (though not irrebuttable) presumption that all of the posts on [that] page were personal.” Id. at 202. On the other hand, where an account “belongs to a political subdivision . . . or is passed down to whomever occupies a particular office,” it may be “clear that a social-media account purports to speak for the government.” Id. at 202.
In contrast, where an account is “mixed use”—meaning the account includes posts made in both a personal and official capacity—courts may need to engage in a further inquiry to determine whether specific posts’ “content and function” indicate that the official was exercising their authority to speak on behalf of the state. Id. at 202-03. Indicators that an official is exercising official authority in a post include, but are not limited to, the explicit invocation of state authority, a post’s legal effect, the fact that a post shares official information not otherwise publicly available, and the use of government staff to make a post. Id. at 203.
Lindke further explained that for mixed-use accounts, the specific action taken by the official can affect the analysis. If an official deletes comments from a post or posts, the “only relevant posts” for state action purposes “are those from which [the plaintiff’s] comments were removed,” so a post-by-post analysis is required. Id. at 204. On the other hand, if an official blocks an individual from a page altogether, then the existence of any post made in an official capacity on which the individual wished to comment would render the blocking state action. Id.
Considering O’Connor-Ratcliff’s social media activity under Lindke, the Ninth Circuit found that based on their appearance and content, O’Connor-Ratcliff’s Facebook and Twitter accounts most closely resembled official accounts. Although the accounts bore her name rather than that of the PUSD Board or her office, O’Connor-Ratcliff identified herself on both pages as the president of the PUSD Board of Education. That title appeared in the “About” section of O’Connor-Ratcliff’s Facebook page and directly under her name on her Twitter page, making it immediately visible to anyone who visited her Twitter account. On Facebook, O’Connor-Ratcliff also identified herself as a “Government Official” at the top of her “Home” page and provided her official PUSD email address as a means of contact. Neither account included a disclaimer that the pages or posts were intended to be personal. The Court thus decided that the presentation of the social media accounts from which the Garnier’s were blocked signaled that they were clothed in the authority of O’Connor-Ratcliff’s office.
The Court found that the content of O’Connor-Ratcliff’s social media pages confirmed their official nature. O’Connor-Ratcliff’s posts were overwhelmingly geared toward 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. Screenshots of O’Connor-Ratcliff’s Facebook and Twitter feeds showed them to be almost exclusively dedicated to posts about PUSD schools and Board of Education activities. O’Connor-Ratcliff’s posts did not advertise campaign promises kept or tout her own political achievements but instead concerned official District business or promoted the District generally. Accordingly, after her election to the PUSD Board, O’Connor-Ratcliff maintained the social media pages here at issue not in her personal capacity or as a political candidate but as a PUSD official. The Court stated that O’Connor-Ratcliff’s labelling and use of her social media pages distinguished them not only from personal accounts but also from mixed-use accounts
Even if the Ninth Circuit did consider O’Connor-Ratcliff’s pages to be “mixed use,” the Court found that Lindke‘s second step would be satisfied. When considering posts on a mixed-use page, each post’s “content and function” must be assessed by a court to determine whether it was made in an official capacity. Id. at 203. The Court noted that posts from O’Connor-Ratcliff’s Facebook page demonstrated that she used her social media accounts to make official statements. Summarizing, the Court stated that O’Connor-Ratcliff’s posts here not only included announcements that she was explicitly empowered to make but also appeared on pages labelled as belonging to an official member of the PUSD Board. Because O’Connor-Ratcliff designated her social media pages as official in both appearance and function, the Ninth Circuit found that Lindke‘s second step was satisfied: O’Connor-Ratcliff purported to exercise her authority to speak on behalf of the state when she posted on social media. She therefore acted under color of state law when she blocked the Garnier’s from her social media accounts.
The Ninth Circuit Court of Appeals held that O’Connor-Ratcliff’s blocking of the Garnier’s on her social media accounts constituted state action under Lindke. Accordingly, the Ninth Circuit Court of Appeals affirmed the District Court’s judgment as to O’Connor-Ratcliff. Because Zane was no longer a public official, the case was remanded with instructions to the District Court to dismiss him from the case as moot.
HOW THIS AFFECTS YOUR AGENCY
The Ninth Circuit emphasized that public officials do have the right to speak on public affairs, including issues related to their official duties, in their personal capacity. However, as the Supreme Court advised in Lindke, public officials can limit the risk of liability for personal speech on social media by, for instance, “keep[ing] personal posts in a clearly designated personal account,” including a disclaimer, or refraining from labelling their personal pages as official means of communication. Id. at 202-04. Heeding these explicit suggestions is advisable for those officials seeking to steer clear of First Amendment issues when posting on their own social media accounts and interacting with others through these accounts. The Ninth Circuit, here, provided some guidance as to the application of the Lindke test and considerations for potential liability associated with removing posts or blocking individuals from posting.
As always, if you wish to discuss this matter in greater detail, please feel free to contact Jim Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com
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[1] Garnier v. O’Connor-Ratcliff, 136 F.4th 1181 (9th Cir. 2025).
[2] Because Zane was no longer a member of the Board of Trustees when the Ninth Circuit reconsidered the case and the parties stated at oral argument that the case was moot as to Zane, the Court of Appeals remanded the claim against Zane to the District Court with instructions to dismiss the claim against Zane as moot.
[3] California Education Code section 35172(c).
[4] Board Member Electronic Communications, Board Bylaw 9012(a), Poway Unified Sch. Dist. (adopted Aug. 9, 2018).