Metropolitan News-Enterprise


Thursday, July 28, 2022


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Ninth Circuit:

Blocking Postings on Web Pages Breached First Amendment


By a MetNews Staff Writer


Public officials who maintain web pages on which comments can be posted violate the First Amendment rights of critics whose messages are barred, the Ninth U.S. Circuit Court of Appeals held yesterday.

 In an opinion by Circuit Judge Marsha S. Berzon, a three-judge panel affirmed a judgment by District Court Presiding Judge Roger T. Benitez of the Southern District of California in favor of Christopher and Kimberly Garnier, parents two children who attend classes in the Poway Unified School District. They sued Michelle O’Connor-Ratcliff and T.J. Zane, members of the district’s Board of Trustees, for blocking their comments.

The action was taken by the defendants after the Garniers repeatedly posted messages on their Facebook and Twitter pages disparaging them and the district. The parents sued, contending:

“Defendants’ criticism-suppressing conduct as alleged in this pleading violated and continues to violate, among other things. Plaintiffs’ rights of free expression and to criticize the government as guaranteed by the United States Constitution.”

Following a two-day bench trial, Benitez on Jan. 21, 2021 granted declaratory and injunctive relief to the Garniers, setting forth:

“The Court finds that based on the record and the applicable law, Plaintiffs have proven Defendants violated 42 U.S.C. § 1983 by depriving Plaintiffs of their right to free speech while acting under color of state law.”

First Impression

In her opinion affirming that decision, Berzon noted that “[t]he Garniers’ claims present an issue of first impression in this Circuit: whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.” She declared:

“[W]e hold that, under the circumstances presented here, the Trustees have acted under color of state law by using their social media pages as public fora in carrying out their official duties. We further hold that, applying First Amendment public forum criteria, the restrictions imposed on the Garniers’ expression are not appropriately tailored to serve a significant governmental interest and so are invalid.”

She elaborated 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” and “constitutes state action under § 1983.”

Damages Denied

The Garniers cross-appealed from Benitez’s denial of damages against the two trustees. Berzon wrote:

“The district court concluded that, at the tune that the Trustees blocked the Garniers. it was not clearly established that the Garniers had a ‘First Amendment right to post comments on a public official’s Facebook or Twitter page.’ We agree.”

She explained:

“Given the novelty of applying the First Amendment and state action doctrines implicated here to the burgeoning public fora of social media, we cannot say that reasonable officials in the Trustees’ position were on notice that blocking the Garniers from individual government officials’ public social media pages could violate the First Amendment.”

The case is Garnier v. O’Connor-Ratcliff, 21-55118.


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