In a resounding victory for school board members on March 15, the United States Supreme Court developed a new and more restrictive test for determining when public officials can be held liable for First Amendment violations related to management of their social media accounts. The Court’s test largely upholds plaintiff’s arguments in O’Connor-Ratliff v. Garnier, a case where CSBA’s Education Legal Alliance (ELA) filed an amicus brief in support of Michelle O’Connor Ratliff, a Poway Unified School District trustee. The U.S. Supreme Court sent O’Connor-Ratliff v. Garnier back to the U.S. Court of Appeals for the Ninth Circuit to reconsider using the new test. The Court also returned a similar case, Lindke v. Freed, back to the U.S. Court of Appeals for the Sixth Circuit.
In O’Connor-Ratcliff v. Garnier, the Ninth Circuit court ruled that a pair of school board members, O’Connor Ratliff and T.J. Zane, violated the First Amendment when they blocked two parents from their personal Facebook and Twitter accounts, which they also used to share information about board activities. Conversely, in Lindke v. Freed, the U.S. Court of Appeals for the Sixth Circuit ruled that because James Freed, a city manager in Port Huron, Michigan, maintained his Facebook page on his own rather than as part of his job, he was not acting as a government official when he blocked a city resident — and therefore not guilty of a First Amendment violation. The conflicting decisions between the Ninth and Sixth circuits created a circuit split and gave the Supreme Court additional reason to hear the Ninth Circuit appeal, which it did in October 2023 before issuing the March 15 opinions in O’Connor-Ratliff v. Garnier and Lindke v. Freed.
In both instances, constituents claimed public officials violated the First Amendment by blocking individuals from their personal social media accounts following a repetitive string of negative comments. While this claim was compelling to the U.S. Court of Appeals for the Ninth Circuit, which found a “close nexus between the Trustees’ use of their social media pages and their official positions,” it was largely rejected in the March 15 ruling from the U.S. Supreme Court. The Supreme Court Justices found that public officials can be held liable for violating the First Amendment when they block their critics — but only when they have the power to speak on behalf of the state and are actually exercising that power. While the Ninth Circuit will need to apply the new test to the facts, those conditions were not satisfied in O’Connor-Ratliff v. Garnier as indicated in CSBA’s amicus brief, where the ELA wrote that the actions of O’Connor-Ratliff and her colleague on the Poway USD school board to block constituents from their personal accounts did not constitute state action because it was not sponsored, supported or funded by the school district. Thus, it could not be considered a First Amendment violation.
In Lindke v. Freed, the Sixth Circuit ruled that since James Freed, a city manager in Port Huron, Michigan, maintained his Facebook page on his own rather than a condition of his job, he was not acting as a government official when he blocked a city resident and therefore was not guilty of a First Amendment violation. In a rare unanimous U.S. Supreme Court decision, Justice Amy Coney Barrett emphasized that while a social media profile’s appearance and function are relevant for to the new test, whether a public official has actual power to speak for the government is crucial, writing that, “Freed did not relinquish his First Amendment rights when he became city manager” and that “the presence of state authority must be real, not a mirage.”
Barrett went on to state that a government official’s social media posts can be attributed to the government only if the official had the authority to speak on behalf of the government and was exercising that power when they created the social media post at the center of the dispute. Determining whether this is the case would require “a fact-specific undertaking in which the post’s content and function are the most important considerations.” Barrett also warned that, “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” Rather than issuing a second opinion in O’Connor-Ratcliff v. Garnier, the Court returned the case to the Ninth Circuit to rule in light of the test it announced in Lindke v. Freed.
Background
Beginning around 2014, Poway USD trustees O’Connor-Ratcliff and T.J. Zane created public Facebook profiles for their campaigns, which they continued to use after being elected. The board members listed their public offices in their Facebook profiles, and their posts on Facebook and Twitter included district-related information. The board members often interacted with members of the public on the platforms and used their social media pages to invite the public to provide feedback on board- and district-related issues.
The plaintiffs, Christopher and Kimberly Garnier, were district parents who frequently left comments on the board members’ Facebook and Twitter accounts. The comments were often lengthy and repetitive, including the same comments being posted repeatedly. In one instance, Christopher Garnier made the same comment on 42 different posts by O’Connor-Ratcliff and issued the same reply to 226 of her tweets. The board members eventually blocked the Garniers from being able to read and post on the board members’ Facebook profiles. Trustee O’Connor-Ratcliff also blocked Christopher Garnier on Twitter. The Garniers sued the board members in federal court for violations of their First Amendment rights.
A federal district court sided with the Garniers, concluding that O’Connor-Ratcliff and Zane blocking them amounted to state action, a decision that was appealed. The Ninth Circuit Court of Appeals then held that the board members engaged in “state action” when they blocked the Garniers from their social media accounts, as the Garniers’ claim required the court make a finding that the board members engaged in state action before it could determine whether they violated the Garniers’ First Amendment rights. The court disagreed with the board members’ argument that they did not engage in state action since the district did not require them to have social media accounts to interact with constituents, nor did the district provide financial or other support for the social media accounts.
Specifically, the court held that the use of the social media accounts was “directly tied” to the board members’ duties because of how the board members used the pages to facilitate the performance of their official duties. The way the pages identified them as board members and involved issues being considered by or acted upon by the board also created a direct tie. Thus, the court found that the board members acted under color of state law. Having made that finding, the court went on to find that the board members violated the Garniers’ First Amendment rights by blocking them from the board members’ social media accounts.
That appeals court ruling is now invalid in light of the March 15 U.S. Supreme Court decision and the appeals courts will review the issue again using the new, more restrictive standard
Taken together, the developments in O’Connor-Ratliff v. Garnier and Lindke v. Freed affirm that public officials are not required to provide unfettered access to their social media accounts, even if the accounts are used to discuss matters of interest to the public. Under the new test, a First Amendment violation occurs only when public officials simultaneously restrict access to personal social media accounts and are exercising their power to speak on behalf of the state. Nevertheless, public officials should be wary of mingling personal posts and posts about public business in the same personal account, as that does tend to increase the prospect of a First Amendment violation — but only when the official is speaking in a position of authority on behalf of the government.
