An April 12 webinar hosted by CSBA explained how school board members can take steps to create a personal social media page where they are not speaking on behalf of their local educational agency, using the standards established by the recent U.S. Supreme Court decision in O’Connor-Ratcliff v. Garnier.
The webinar featured CSBA General Counsel Kristin Lindgren-Bruzzone and Peter K. Fagan and Gretchen Shipley of F3, a CSBA Gold Affiliate law firm that represented and advocated on behalf of the association in this case, discussing the lawsuit. The case involved actions taken by two Poway Unified School District trustees, Michelle O’Connor-Ratcliff and T. J. Zane, to block Christopher and Kimberly Garnier — a married couple who was spamming their social media accounts.
The accounts were created while O’Connor-Ratcliff and Zane were campaigning and continued to be used after they were elected to share district-related information. O’Connor-Ratcliff ultimately blocked accounts connected to the Garniers on Facebook and Twitter.
CSBA’s Education Legal Alliance (ELA), in partnership with F3, filed an amicus brief in the case due to policy concerns, “including that the Ninth Circuit, which was the lower court, had really created a test for determining whether a board member is speaking on behalf of the district and engaging in what’s called state action that was far too broad and would encompass far too many activities — private activities — of board members and negatively impact their First Amendment right to speak on issues that they think are important,” Lindgren-Bruzzone explained.
Lindgren-Bruzzone added that CSBA was also concerned about the scenario created by the Ninth Circuit’s decision where an individual trustee could be perceived as taking state action and speaking on behalf of the entire board.
If the Supreme Court’s findings were in line with the Ninth Circuit, CSBA was interested in establishing whether a disclaimer or regulation could be put in place to avoid liability.
Lindgren-Bruzzone noted that CSBA and its ELA feel it is critical to get involved in new cases on technology and social media because many of them have not been considered by the Supreme Court yet. “It was very important, once the Supreme Court decided it was going to weigh in, to make sure that CSBA members’ voices were heard in this matter,” she said.
Ultimately, the Supreme Court ruling largely upheld the defendant’s arguments included in the ELA amicus brief and established steps that trustees can take to have personal social media accounts and exercise their First Amendment rights without subjecting them or their LEA to liability emerged.
A two-part test
The Supreme Court developed a test to determine when public officials can be held liable for violating the First Amendment in regard to social media account management.
F3’s Fagen outlined the two-part test, which identifies whether a school board member’s account is speech on behalf of their LEA:
- Part One: A public official’s social-media activity constitutes state action only if the official possessed actual authority to speak on the state’s behalf; and
- Part Two: The official is purported to exercise that authority when they spoke on social media.
As school boards act as a board and individual members typically don’t have the authority to act on their own on behalf of the LEA, “generally speaking, school board members are not going to meet that first part of the test,” Fagen said.
Shipley added that a caveat exists, saying “the actual case as it applies to the two board members is technically on remand from the Supreme Court, which means the Supreme Court issued a new test that is the law … but they sent the case back down to the Ninth Circuit to say … apply the new test to these two individual board members. So, there may be a new decision coming out from the Ninth Circuit, but we don’t anticipate that the test will change.”
Using disclaimers
The attorneys also covered the use of disclaimers on social media pages to make a rebuttable presumption that the page is personal. Examples of such a disclaimer include:
- “This is the personal page of (insert name). It is not sponsored, supported or funded by anyone else but me. The views and opinions expressed are my own and are not intended to represent the position of (insert name of school district) or its board.”
- “This is the personal page of (insert name). It is not sponsored, supported or funded by anyone else but me.”
However, if LEA information is solely housed on a board member’s page or district resources are used to maintain the page, the rebuttable presumption can be eroded.
Lindgren-Bruzzone presented next steps for trustees, including reviewing bylaws, implementing disclaimers and training on social media use.
View a recording of the webinar here.
