On May 14, the Ninth Circuit issued a decision in Garnier v. O’Connor-Ratcliff, a case that relates to public officials’ use of social media, and which the U.S. Supreme Court remanded for reconsideration under a newly created standard. CSBA’s Education Legal Alliance (ELA) filed an amicus brief at the Supreme Court level in the case. (The 2023 winter edition of California Schools magazine includes details of the Ninth Circuit’s first review of the case.)
After an application of the new Supreme Court test, the Ninth Circuit came to the same conclusion it had previously — trustee Michelle O’Connor-Ratcliff was a state actor when she blocked members of the public from her social media pages and thus, violated their First Amendment right.
The case involves two Poway Unified School District (PUSD) trustees, T.J. Zane and O’Connor-Ratcliff, and two members of the public, Chirstopher and Kimberly Garnier, who participated frequently in social media engagement such as commenting on posts made to the accounts of both trustees. The trustees initially began their Facebook and Twitter (which has since been rebranded as X) accounts as part of their campaign for office and continued to use the accounts after they were elected to engage with constituents.
The Garniers were blocked from the trustees’ Facebook accounts and O’Connor-Ratcliff also blocked Christopher Garnier on Twitter after the Garniers left frequent and repetitive comments, as many as hundreds of the same comment. The Garniers sued the trustees in federal court for violations of their First Amendment rights. After both lower courts held in favor of the Garniers, the trustees appealed to the Supreme Court, and CSBA’s ELA filed an amicus brief in support of the trustees’ argument that they were not state actors when speaking on the social media accounts that the Garniers were blocked from.
The Supreme Court did not directly address the question of whether the trustees were state actors but instead created a new test to be used when considering if a person is a state actor when engaging on social media. The Lindke standard, named for another case the Supreme Court considered at the same time as this one, has a two-step process that asks: 1) Did the “speaker” (the individual posting on social media) possess actual authority to speak on the state’s behalf? 2) If so, did the individual purport to exercise that authority when they spoke on social media? The Supeme Court instructed the Ninth Circuit to apply this new test to the facts of the O’Connor-Ratcliff case.
The Ninth Circuit’s analysis was limited to the case as to O’Connor-Ratcliff, since as of the time of the review, Zane was no longer on the PUSD school board, and that portion of the case had become moot. The court applied the new test to O’Connor-Ratcliff’s social media use to determine if she was a state actor through her postings on her two social media accounts. First, the court determined that she did possess the authority to speak on behalf of the state because of state law and school district policy. The court specifically cited Education Code Section 35172(c) and Board Bylaws 9010(a) and 9012(a) as relevant provisions of law and policy that provided O’Connor-Ratcliff the authority to speak for the state because those sources provided board members with the authority to speak on behalf of their district. The court stated that these sources are legitimate sources of authority under the Lindke standard and emphasize that speaking to constituents is “part of the job the State entrusted” to O’Connor-Ratcliff.
Importantly, the court held that the fact that school boards must collectively act together through majority votes does not negate the fact that individual board members may act on their own outside of voting on matters before the board. Additionally, the fact that PUSD did not authorize the social media accounts as official district accounts did not remove a board member’s authority to speak as a state actor on them. Similarly, the fact that the social media accounts were made for campaign purposes and never officially converted to official board member pages was irrelevant. Ultimately, PUSD’s and the state’s authorization for O’Connor-Ratcliff to speak as a state actor was enough to satisfy the first step of the Lindke standard. These holdings are concerning, as they do not reflect the actual authority of school board members.
As to the second part of the test, the court held that O’Connor-Ratcliff did purport to use her state-given authority to speak for the district. Her accounts were not “personal” and instead should be characterized as “official” accounts because of the posts made and the information she presented about herself on them. Specifically, O’Connor-Ratcliff identified herself as the president of the PUSD board and a “government official” in her profile information. She used her PUSD email for the accounts and did not include a disclaimer that the views were her own.
The court further explained that some accounts may be “mixed used” meaning that they contain both personal information as well as state-related information. In those circumstances, the specific posts in question are reviewed to determine if they are official or personal. Because the Garniers were blocked from both accounts entirely, only one post on those accounts needed to relate to district matters and be considered “official.”
The court concluded its analysis by describing that public officials “assuredly do have the right to speak on public affairs, including issues related to their official duties, in their personal capacity.” To avoid liability as a state actor, the court explained that officials should take precautions such as keeping personal posts in a designated personal account, including a disclaimer on such accounts to avoid posts being characterized as those of a state actor, and refraining from labeling such personal pages as official means of communication. Based on the broad analysis of the Ninth Circuit, board members should consult legal counsel before blocking members of the public from any page they use to discuss district or board matters.
