9th Cir.: Political Officials’ Blocking of Social Media Comments May Violate the First Amendment
From today’s decision in Garnier v. O’Connor-Ratcliff, written by Judge Marsha Berzon and joined by Judges Richard Tallman and Michelle Friedland:
Today, social media websites like Facebook and Twitter are, for many, “the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.” Packingham v. N.C. (2017). Accordingly, social media sites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”.
Unsurprisingly, social media’s capacity for facilitating communication and stirring public debate has not been lost on public officials. From local county supervisors and state representatives to the President of the United States, elected officials across the country 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.
This case concerns a dispute arising from two public officials’ use of social media to communicate with constituents about public issues. Beginning around 2014, two members of the Poway Unified School District (“PUSD” or the “District”) Board of Trustees, Michelle O’Connor-Ratcliff and T.J. Zane (together, “the Trustees”), created public Facebook and Twitter pages to promote their campaigns for office. After they won and assumed office, the two used their public social media pages to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to Board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District’s schools.
But public engagement with their social media pages was not all [thumbs-up emoji]s and [heart emoji]s. 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. After deleting or hiding the Garniers’ repetitive comments for a time, the Trustees eventually blocked the Garniers entirely from their social media pages. The Garniers sued, asserting that the Trustees violated their First Amendment rights by ejecting them from the social media pages. After a bench trial, the district court agreed with the Garniers that their First Amendment rights had been violated. Both parties appeal….
We have never addressed whether a public official acts under color of state law by blocking a constituent from a social media page. Doing so now, we conclude that, given the close nexus between the Trustees’ use of their social media pages and their official positions, the Trustees in this case were acting under color of state law when they blocked the Garniers.
The Trustees’ use of their social media accounts was directly connected to, although not required by, their official positions…. [T]he line of precedent most similar to this case concerns whether off-duty governmental employees are acting under color of state law. As here, the focus in such cases is on whether the public official’s conduct, even if “seemingly private,” is sufficiently related to the performance of his or her official duties to create “a close nexus between the State and the challenged action,” or whether the public official is instead “pursu[ing] private goals via private actions.” …
O’Connor-Ratcliff’s and Zane’s use of their social media pages qualifies as state action under § 1983. First, the Trustees “purport[ed] … to act in the performance of [their] official duties” through the use of their social media pages. The Trustees identified themselves on their Facebook pages as “government official[s],” listed their official titles in prominent places on both their Facebook and Twitter pages, and, in O’Connor-Ratcliff’s case, included her official PUSD email address in the page’s contact information. Zane, for his part, wrote that his Facebook page was “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.”
Consistent with the Trustees’ official identifications on their social media pages, the content of the Trustees’ pages was overwhelmingly geared toward “provid[ing] information to the public about” the PUSD Board’s “official activities and solicit[ing] input from the public on policy issues” relevant to Board decisions. O’Connor-Ratcliff and Zane regularly posted about school board meetings, surveys related to school district policy decisions, the superintendent hiring process, budget planning, and public safety issues. So, 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 PU
Article from Reason.com