The Ninth Circuit Holds that Official Use of a Social Media Platform Created a Public Forum, and Blocking Members of the Public Violated the First Amendment

08.03.2022

In Garnier v. O’Connor-Ratcliff (9th Cir. July 27, 2022, Nos. 21-55118, 21-55157) __ F.3d __, the Ninth Circuit Court of Appeals decided a case of first impression when it determined state officials violated the First Amendment by creating publicly accessible social media pages related to their official duties and then blocking certain members of the public because of the nature of their comments.

Background

Michelle O’Connor-Ratcliff and T.J. Zane (“Trustees”) were elected to the Poway Unified School District (“PUSD”) Board of Trustees (“Board”). As part of their campaigns, the Trustees created publicly accessible social media pages (Facebook & Twitter) to promote their candidacies. Once elected, the Trustees continued using the social media pages to communicate with the public concerning their Board duties and matters before PUSD. In addition, the Trustees referred to themselves as  a “government official” and “President of the PUSD Board of Education” or “the official page for Poway Unified School District Board Member.” On their respective pages, members of the public could freely comment on posts made by the Trustees as there were no rules of etiquette or decorum regulating the posts.

Christopher and Kimberly Garnier (“Petitioners”) were parents of students who attended PUSD schools and were vocal critics of the Board. Petitioners had attended Board meetings but claimed many of their concerns went unanswered. Petitioners then began to comment on the Trustees’ social media pages. Some of the comments were lengthy and repetitive but the comments did not use profanity or threaten physical harm. The Trustees started to delete or hide Petitioners’ comments, and eventually blocked Petitioners from the social media pages. The Trustees began using a “word filter” that would preclude any comment containing certain prohibited words from being used in the comments. This effectively made all written comments regarding PUSD unavailable on the social media pages. Even with the filter, the public was still able to register non-verbal reactions (“likes” or “unhappy faces”); however, the Petitioners were not able to provide these non-verbal reactions because they were blocked.

Petitioners brought a civil rights suit seeking damages as well as declaratory and injunctive relief against the Trustees under federal law, 42 U.S.C. § 1983 (Section 1983). Petitioners alleged that the Trustees’ social media pages constituted a public forum, and by blocking them from commenting on the pages the Trustees violated Petitioners’ First Amendment rights. The District Court granted summary judgment on the Trustees’ qualified immunity defense to the damages claim, but otherwise allowed the case to proceed. After a bench trial, the District Court granted judgment In favor of Petitioners and awarded declaratory and injunctive relief.  The Trustees appealed the judgment, and Petitioners cross-appealed on the grant of qualified immunity to the Trustees.

Ninth Circuit Decision

On appeal, the Trustees argued that: (1) the dispute is moot because they closed the public forum through use of a “word filter” to effectively limit all written comments on their posts; (2) creating, maintaining, and blocking Petitioners from their social media pages did not amount to state action; and (3) indefinitely blocking Petitioners is a narrowly tailored time, place, or manner restriction and does not violate Petitioners’ First Amendment rights.

    A. Mootness

The Ninth Circuit rejected the mootness argument because although the “word filter” effectively limited written comments from all users, Petitioners were still blocked from posting non-verbal reactions on Facebook that the public could post(“like,” “angry face,” etc.),  and were still blocked from all interaction on the otherwise public Twitter platform. Additionally, the Court found that “voluntary cessation of allegedly unlawful activity ordinarily does not moot the case” because the Trustees could still block Petitioners after the case has been declared moot and continue with the allegedly unlawful activity. 

    B. State Action

The Court addressed a novel issue in this Circuit of whether a public official acts under color of state law when they block individuals from their social media page, thus making the official’s conduct actionable as a Section 1983 civil rights claim. The Court applied the nexus test in order to determine whether there was a state action. The nexus test applies when there is “such a close nexus between the State and the challenged action that the seemingly private behavior may be fairly treated as that of the State itself.”^[1] The Court found that the Trustees’ social media accounts were directly connected to their official Board duties, even though they were purportedly private accounts, creating such a close nexus that the Trustees were acting under color of state law when they blocked Petitioners.

The Court noted by analogy that a “state employee who is off duty nevertheless acts under color of state law when (1) the employee ‘purport[s] to or pretend[s] to act under color of law,’ (2) his ‘pretense of acting in the performance of his duties…had the purpose and effect of influencing the behavior of others,’ and (3) the harm inflicted on plaintiff ‘related in some meaningful way either to the officer’s governmental status or to the performance of his duties.’”^[2] The Court found that the Trustees purported to act under color of law because they held out the Facebook and Twitter pages to be their “official” pages, including their designations and their official PUSD email addresses. Moreover, the Trustees had the purpose and effect of influencing the behavior of others because they solicited constituent input on PUSD business and encouraged the public to mark their calendars for PUSD events, fill out surveys for board decision-making, and apply for volunteer committees. Further, the Court found that the Trustees’ management of their social media pages related in some meaningful way to their governmental status or performance of their duties because they used the pages to communicate about the selection of a new superintendent, formulation of PUSD’s LCAP plan, and composition of PUSD’s Budget Advisory Committee, among other things. Finally, the Trustees’ social media pages did not include any disclaimer indicating that the statements contained therein were not made in an official capacity and reflected only the author’s personal opinions. The Ninth Circuit, relying on recent decisions of the Second, Fourth, and Eight Circuits,^[3] found the Trustees’ use of their social media pages in these ways amounted to state action and thus was subject to a Section 1983 civil rights claim.  The Court specifically noted that this was a fact-based analysis and “not every social media account operated by a public official is a government account.”^[4]

    C. First Amendment Forum Analysis

According to the Court, a “designated public forum exists where ‘the government intentionally opens up a nontraditional forum for public discourse.’”^[5]  In a designated public forum, “the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions” are “narrowly tailored to serve a significant governmental interest” and “leave open ample alternative channels for communication of the information.”  In this case, the Court found the initial use of the social media pages created a public forum since the Trustees designed those social media pages to be public spaces and used them to solicit feedback from the public. Although the Trustees argued that the subsequent use of “word filters” on the Facebook pages effectively prevented the public from posting written comments and thereby closed the public forum, the Court found that because the rest of the public (other than Petitioners) were still able to post non-verbal reactions the public forum was not closed entirely. As such, the Facebook pages constituted a “limited public forum.”  However, the Twitter page (from which Petitioners were blocked, and the general public was not) remained a designated public forum.

The Ninth Circuit found that even if the Trustees’ decision to block the Petitioners was a content-neutral time, place and manner restriction, it still violated the First Amendment. Blocking Petitioners because of the repetitive nature and length of the comments was not narrowly tailored to serve a compelling government interest because the comments did not disrupt or interfere with the Trustees' ability to communicate with the public, and the decision to block Petitioners was overbroad in application.  

    D. Qualified Immunity

Qualified immunity shields state officials from money damage claims unless the official violates a clearly established statutory or constitutional right.^[6]  The Ninth Circuit held that until this decision, there was no definitive answer in Supreme Court or Ninth Circuit authority addressing social media platforms as public forums.  The recent cases from other Circuits, which were instructive to the Ninth Circuit’s analysis, were not controlling and arose after the facts in the present case.  Therefore, those decisions did not create a clearly established right sufficient to put a reasonable public official on notice of potential violation.  Accordingly, the Court held that under these facts the Trustees were entitled to qualified immunity against the Petitioners’ claim for money damages.

Implications of Decision

1. Public officials should be aware that the use of social media platforms for official business or in a manner that conveys a connection to their public duties may establish a designated or limited public forum, to which First Amendment protections may apply.
2. In such a case, any action undertaken by public officials to limit public access to their social media pages may have constitutional implications that in turn may lead to personal liability. Qualified immunity may be unavailable after this Ninth Circuit decision.
3. Public officials are urged to contact legal counsel for tailored recommendations on how to comply with this ruling when using social media platforms for official purposes.

Special thanks to Jeffrey Torres, our Riverside law clerk, for his extensive work on this alert.

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^[1] Kirtley v. Rainey (9th Cir. 2003) 326 F.3d 1088, 1094-95 (quoting Brentwood Academy v. Tennessee Secondary School Athletic Ass’n (2001) 531 U.S. 288, 295).

^[2] Naffe v. Frey (9th Cir. 2015) 789 F.3d 1030, 1037.

^[3] See Knight First Amendment Institute at Columbia University v. Trump (2d Cir. 2019) 928 F.3d 226, Davison v. Randall (4th Cir. 2019) 912 F.3d 666, and Campbell v. Reisch (8th Cir. 2021) 986 F.3d 822 [public officials using private social media pages may act under color of law when used in a way as to create a sufficient nexus between private action and government action, e.g. portraying social media account as official, soliciting public participation in government affairs, furnishing information on pending legislation, etc.].

^[4] Knight, supra, at 236.

^[5] Hopper v. City of Pasco (9th Cir. 2001) 241 F.3d 1067, 1074 (quoting DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ. (9th Cir. 1999) 196 F.3d 958, 964.

^[6] Ashcroft v. al-Kidd (2011) 563 U.S. 731, 735 (internal citations omitted).

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