Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022).

Blocking Parents From Board Trustees’ Social Media Pages Violated Parents’ Free Speech Rights

General Interest to School Officials
Case: Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022).
Date: Wednesday, July 27, 2022

In November 2014, while running for election to the Poway Unified School District Board of Trustees (Board), two individuals (Trustees) created public Facebook pages to promote their campaigns. After winning their elections, Trustees changed the descriptions of their pages to state they were now government officials, and they continued to use their Facebook pages to post content related to district business. One Trustee also created a Twitter page related to her official duties. In their posts, Trustees invited the public to fill out surveys, shared information about upcoming events, and reported on Board action. Trustees did not establish any rules of etiquette or decorum regulating how the public was to interact with the pages.

Constituents who frequently commented on Trustees’ posts included Christopher and Kimberly Garnier (Parents), who had children attending the district and had been active in the district community for years, regularly attending Board meetings and emailing the Board about their concerns. Parents began posting lengthy and repetitive comments on Trustees’ social media pages. Frustrated with Parents’ repetitive posts, Trustees began deleting or hiding the posts and Trustees eventually blocked Parents from the pages. Then, Trustees began using Facebook’s word filter feature to effectively prevent all verbal comments on the pages. Parents filed a Section 1983 suit alleging Trustees violated their First Amendment rights by blocking Parents from public fora (the social media pages) and sought damages and declaratory and injunctive relief.

The U.S. District Court for the Southern District of California (District Court) granted Trustees qualified immunity as to the damages claim but allowed the case to proceed. Following a bench trial, the District Court found that Trustees’ social media pages were designated public fora and that Trustees’ decision to block Parents was content neutral and intended “to enforce an unwritten rule of decorum prohibiting repetitious speech on their social media pages.” Even so, the District Court granted judgment to Parents and awarded costs because Trustees’ indefinite blocking of Parents was not narrowly tailored to avoid repetitive comments.

Trustees appealed, arguing that they closed any public fora they had created on their social media pages when they blocked almost all comments using word filters, so Parents’ case was moot. The Appeals Court did not buy this argument, noting that Facebook word filters did not stop the public from reacting to posts (e.g., with a “like” or emoticons) and that Twitter did not have word filters. The Appeals Court affirmed that Trustees’ social media conduct was sufficiently related to their official duties to mean that they constituted state action (even if the Board did not fund or authorize them) because their posts concerned or promoted district business and the pages did not contain any disclaimer that the “statements made on this web site reflect the personal opinions of the author” and “are not made in any official capacity.” The Appeals Court also affirmed that Trustees violated Parents’ First Amendment rights when they blocked Parents from the social media pages and that Parents were entitled to relief.

While the Appeals Court noted that not every social media account operated by a public official is a government account and that specific facts and circumstances must be weighed, this case is an important reminder of factors that board members should consider when operating social media pages, including but not limited to: how the page is described and used, how members of the public and government regard and treat the page, whether the page has any rules of etiquette and decorum, and whether the page contains any disclaimers.