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Ninth Circuit:
School Board Officer Violated First Amendment By Deleting Social Media Comments by Parents
Opinion Says President Acted Under Color of State Law in Prohibiting Plaintiffs From Remarking on Pages Used to Communicate Some Official Business
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held yesterday that judgment was properly entered in favor of two parents who alleged that a school board president violated their First Amendment rights by blocking their ability to comment on her social media pages, finding that the official acted under color of state law in managing the posts on a page used to communicate official matters.
Poway Unified School District Board of Trustees President Michelle O’Connor-Ratcliff deleted, hid, and eventually blocked Christopher and Kimberly Garnier from commenting on her Facebook and Twitter pages after repeated interactions. On one occasion, within a span of approximately 10 minutes, Christopher Garnier posted 226 identical replies on O’Connor-Ratcliff’s Twitter account, one for each post on the page.
In 2017, the Garniers filed a complaint in federal court under 42 U.S.C. §1983, alleging:
“As concerned parents with children attending public schools in the Poway Unified School District (“PUSD”), Plaintiffs have consistently spoken their minds whenever it appeared that the best interests of PUSD students were being subordinated to the whims of capricious, corrupt PUSD officials….Rather than listen to Plaintiffs, Defendants have shut them down.”
Senior District Court Judge Roger T. Benitez of the Central District of California found that O’Connor-Ratcliff acted under color of state law for purposes of §1983 and that the social media pages amounted to public fora.
After a two-day bench trial, the judge declared that the defendant blocked the plaintiffs for content-neutral reasons—finding that the decision was made due to the repetitive nature of the posts—but that, even under a rational basis review, the indefinite ban ran afoul of constitutional principles. He ordered the defendant “to unblock Plaintiffs on [her] public Facebook page[] and…to unblock Plaintiff Christopher Garnier on her public Twitter account.”
Supreme Court Appeal
The Ninth Circuit affirmed, also finding that the defendant acted as an agent of the district and in violation of the First Amendment. O’Connor-Ratcliff filed a petition for review with the U.S. Supreme Court, only seeking to challenge the state action determination.
Last year, the high court announced a new standard for determining when a public official’s social media activity counts as state action in the Lindke v. Freed case, ruling that a public official’s social media management constitutes state action, for purposes of §1983, “only if the official (1) possess[es] actual authority to speak on the State’s behalf, and (2) purport[s] to exercise that authority when he [speaks] on social media.” On March 15, 2024, the same day the Lindke decision was filed, the high court sent the present matter back to the Ninth Circuit with instructions to determine whether O’Connor-Ratcliff acted as an agent of the state under the newly announced standard.
In an opinion written by Senior Circuit Judge Marsha S. Berzon, and joined in by Circuit Judge Michelle T. Friedland and Senior Circuit Judge Richard C. Tallman, the court said:
“We hold that O’Connor-Ratcliff’s blocking of the Garniers on her social media accounts constituted state action under Lindke. For that reason—as well as those articulated in our earlier opinion and not challenged in the Supreme Court—we affirm the judgment of the district court as to O’Connor-Ratcliff.”
Another trustee, T.J. Zane, had also been named in the plaintiffs’ lawsuit, but Berzon noted that he was no longer serving on the board. She declared:
“Because Zane is no longer a public official, we remand the claim against him to the district court with instructions to dismiss him from the case as moot.”
Actual Authority
Berzon explained that, under the Lindke approach, courts are to look to statutes, regulations, and customs to determine whether a purported official has the actual authority to speak on the state’s behalf.
Applying that standard, she noted that California law empowers school boards to “[i]nform and make known to the citizens of the district, the educational programs and activities of the schools therein” and that the board of trustee bylaws “indicate[] that O’Connor-Ratcliff, as the Board president, is a person authorized to share information with the community.”
O’Connor-Ratcliff acknowledges these facts but argues that her social media interactions do not qualify because her pages were not officially sanctioned and were originally created as campaign sites. Rejecting that view, Berzon wrote:
“Lindke recognized the possibility that public officials may at times make official announcements on unofficial, and even otherwise exclusively personal, social media accounts….So O’Connor-Ratcliff’s exercise of her authority to speak on behalf of the District can constitute state action even if it happened on social media pages that are not ‘official district social media platforms’ as defined by [school district].”
State’s Behalf
Turning to the second prong, the jurist explained that “Lindke[]…asks whether a public official ‘purported to exercise’ their ‘authority to speak on the State’s behalf’ when they ‘spoke on social media.’ ” Berzon pointed out that O’Connor-Ratcliff identified herself on both Facebook and Twitter as the president of the Poway Unified School District Board of Education, and neither page included a disclaimer indicating that her posts were intended to be a reflection of her personal views. She added:
“Screenshots of O’Connor-Ratcliff’s Facebook and Twitter feeds show them to be almost exclusively dedicated to posts about [Poway] schools and Board of Education activities.”
The judge remarked that even if the court found that O’Connor-Ratcliff’s pages had both an official and personal function, the Lindke decision only requires that the defendant “purported to exercise her official authority with respect to…a single post on those accounts on which the Garniers wished to comment but could not do so.” The court found the threshold was easily met in this case.
Saying that “[w]e emphasize that public officials assuredly do have the right to speak on public affairs,” she concluded that they “can limit the risk of liability for personal speech on social media by…‘keep[ing] personal posts in a clearly designated personal account,’ including a disclaimer, or refraining from labelling their personal pages as official means of communication.”
The case is Garnier v. O’Connor-Ratcliff, 21-55118.
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