Ninth Circuit: Elected Officials Violated the First Amendment by Blocking Constituents on Social Media–Garnier v. O’Connor-Ratcliff

July 28, 2022 · by · in Content Regulation, Emojis

This case involves two elected trustees of the Poway Unified School Board (PUSD), Michelle O’Connor-Ratcliff and T.J. Zane. (Poway is a San Diego suburb). They used their Facebook and Twitter pages “to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to Board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District’s schools.” Two parents in the district, Christopher and Kimberly Garnier, posted criticisms of the trustees and the board to those social media pages. “The Garniers’ social media comments did not use profanity or threaten physical harm, and almost all of their comments related to PUSD. But the Garniers’ comments were often quite lengthy and were frequently repetitive of other comments they had posted on the Trustees’ social media communications.” The trustees hid or deleted those posts and finally blocked the Garniers. The Garniers sued, and the district court ruled that the trustees had violated the First Amendment. In a thorough, thoughtful, and well-constructed opinion, the Ninth Circuit affirms, saying “When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.”

Overview

The court frames the issue: “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.” The court holds: “the Trustees have acted under color of state law by using their social media pages as public fora in carrying out their official duties [and] the restrictions imposed on the Garniers’ expression are not appropriately tailored to serve a significant governmental interest and so are invalid.”

Mootness

Over time, the trustees adopted expansive word filters that functionally block Facebook comments. The trustees then claimed this mooted the case by eliminating the forum. The court disagrees. Even with comments filtered, other readers could still use Facebook reactions, but the Garniers could not because they were blocked. Furthermore, the trustees voluntarily adopted the word filters and haven’t committed to maintaining them in place, so they could change their minds and resume the censorship.

State Action

The court says: “The Trustees’ use of their social media accounts was directly connected to, although not required by, their official positions.” Evidence in support of this:

  • “The Trustees identified themselves on their Facebook pages as “government official[s],” listed their official titles in prominent places on both their Facebook and Twitter pages, and, in O’Connor-Ratcliff’s case, included her official PUSD email address in the page’s contact information. Zane, for his part, wrote that his Facebook page was “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.” The court notes the pages did not contain any disclaimers, but I wonder if disclaimers would have changed the outcome assuming everything else remained the same (because the disclaimers would be obviously pretextual in that circumstance).
  • “the content of the Trustees’ pages was overwhelmingly geared toward “provid[ing] information to the public about” the PUSD Board’s “official activities and solicit[ing] input from the public on policy issues” relevant to Board decisions….both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public about the work of the PUSD Board.”
  • “Both Trustees actively solicited constituent input about official PUSD matters, including encouraging constituents to mark their calendars for upcoming Board meetings, to fill out surveys relating to Board decision-making, and to apply for volunteer committees run by the Board. And both Trustees sought feedback from constituents, and responded to their comments.”
  • “The Trustees used their social media pages to communicate about, among other things, the selection of a new superintendent, the formulation of PUSD’s LCAP plan, the composition of PUSD’s Budget Advisory Committee, the dates of PUSD Board meetings, and the issues discussed at those meetings. Those posts related directly to the Trustees’ duties.”

Thus, “because the Trustees presented and administered their social media pages as official organs for carrying out their PUSD Board duties, the Trustees’ decision to block the Garniers for allegedly interfering with that use of the social media pages “related in some meaningful way either to the [Trustees’] governmental status or to the performance of [their] duties.”…O’Connor-Ratcliff and Zane unequivocally “cloaked” their social media accounts “with the authority of the state.””

The trustees’ social media pages had started as campaign pages, but the court says they didn’t stay that way after election: “the Trustees’ posts about PUSD school activities generally do not read as advertising “campaign promises” kept or touting their own political achievements. After their election in 2014, the Trustees virtually never posted overtly political or self-promotional material on their social media pages. Rather, their posts either concerned official District business or promoted the District generally.” It wouldn’t make a difference to me if the pages had self-promoted the trustees’ work post-election because that’s just a synonym for government propaganda, but the court implies that might preserve the pretext of the page still being campaign-themed even if the trustees were no longer running for office.

Reconciling the Case With the 8th and 6th Circuits

In Campbell v. Reisch, the 8th Circuit held that the social media accounts were campaign accounts, not official state accounts. The court distinguishes the case because: (1) “the Trustees presented their social media pages as belonging to “government officials,”” and (2) “the Trustees routinely used their social media “as a tool of governance.””

In Lindke v. Freed, the Sixth Circuit held that the city manager wasn’t a state actor when he managed his personal Facebook page. The opinion is wrong IMO. Rather than try to distinguish it, the court simply says “We decline to follow the Sixth Circuit’s reasoning.” Circuit split alert!

Forum Analysis

The court says the trustees turned their social media pages into designated public fora:

Before the Trustees began using word filters, their social media pages were open and available to the public without any restriction on the form or content of comments. And far from forbidding comments, the Trustees occasionally solicited feedback from constituents through their posts and responded to individuals who left comments.

Using the word filters to block most user comments turned the Facebook pages into limited public fora (there was still interactivity from the Facebook reactions). In a footnote, the court says the analysis might differ if the filtered words targeted criticism or subject-specific comments.

The court says the trustees came close to viewpoint discrimination. They claimed to block the Garniers due to their repetitive spamming, but:

There are reasons to doubt that explanation. For one, even lengthy comments on Facebook and replies on Twitter do not significantly detract from or overwhelm the original post. Facebook automatically truncates lengthy posts. On Twitter, replies to a user’s Tweets are not visible from the user’s home page. So the Trustees’ contention that the Garniers’ comments “fill[ed] up the page” and detracted from the “streamlined, bulletin board nature” of their accounts is inconsistent with the technological reality. What is more, the record shows that the Trustees hid or deleted negative comments from the Garniers that were not repetitive but did not similarly hide or delete positive comments from other people. And to the extent the Trustees maintain that they intended to keep their pages as a “streamlined,” one-way channel of communication, their replies to constituents’ comments undermines that assertion

Either way, the court says the trustees’ blocking doesn’t satisfy the lower review standards applied to time/place/manner restrictions. “The record in this case does not support the Trustees’ contention that the Garniers’ comments actually disrupted their pages or interfered with their ability to host discussion on their pages” because

Facebook automatically trims lengthy comments, such as some of those left by the Garniers, requiring viewers interested in reading those comments to click a “See More” button to read beyond the first few lines of text. Similarly, on Twitter, replies to a user’s Tweets are not automatically visible; a viewer interested in reading replies to a Tweet must click on a particular Tweet and scroll to the replies to view them. And on either platform, viewers of the Trustees’ social media pages can, with the flick of a finger, simply scroll past repetitive or irrelevant comments….the features of Facebook and Twitter rendered the Garniers’ repetitive comments only minimally distracting.

The court distinguishes the rules that govern physical-space government meetings, where there is limited time and space that can be overrun by repetitive comments or “unruly” speakers.

Furthermore, blocking the Garniers wasn’t a narrowly tailored solution because it stopped them from leaving non-repetitive comments and, on Twitter, blocked them from reading the tweets at all. On Facebook, a more tailored approach would have been to delete the repetitive comments. “Alternatively, the Trustees could have established and enforced clear rules of etiquette for public comments on their pages, including rules against lengthy, repetitive, or off-topic comments.” It’s an interesting choice for the court to call them “rules of etiquette,” because they aren’t really about “etiquette” per se but really about content moderation practices, and they too will be subject to the court’s forum analysis. Later the court uses the euphemism “rules of decorum” to the same effect.

The court says it was also not OK to continue blocking the Garniers at Facebook after deploying the word filter hack, because it prevented them from using Facebook reactions.

The Court’s Conclusion

The protections of the First Amendment apply no less to the “vast democratic forums of the Internet” than they do to the bulletin boards or town halls of the corporeal world. [Packingham]. That is not to say that every social media account created by public officials is subject to constitutional scrutiny or that, having created a public forum online, public officials are powerless to manage public interaction with their profiles. As this case demonstrates, analogies between physical public fora and the virtual public fora of the present are sometimes imperfect, and courts applying First Amendment protections to virtual spaces must be mindful of the nuances of how those online fora function in practice. Whatever those nuances, we have little doubt that social media will continue to play an essential role in hosting public debate and facilitating the free expression that lies at the heart of the First Amendment. When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them

Implications

I have written on this subject many times in great detail, so I’ll quickly highlight some of the issues reinforced by this decision.

  • The Sixth Circuit’s Lindke opinion expressly created a circuit split, which the Ninth Circuit confirms here. The Supreme Court tried to dodge the issue by dismissing the Knight First Amendment v. Trump case as moot, but the issue is headed back to the Supreme Court nevertheless. Given its thoughtfulness, this opinion would be a great one to frame the issue for them.
  • The court did not address the overlay of Facebook’s/Twitter’s content policies on the trustees’ social media pages. If the trustees or third parties had complained to the social media services about the Garniers’ spamming, and the social media service had decided to take action, what consequence? This shows the unsuitability of government-operated speech venues running on social media services with their independent content policies that are overlaid on top of the government’s forum policies.
  • The court implies that rules of etiquette/decorum will get gentler constitutional scrutiny, but be careful! Maybe a ban on repetitive comments would survive, but a ban on commercial spam probably would not. Also, I agree that item-removals are better that account blocks (I make that point in my Content Moderation Remedies paper), but item-removals motivated by improper objectives will still violate the First Amendment. For example, in some circumstances, the repetitive comments posted to different government-made social media posts could be additive if a reader of the post wouldn’t see the comments posted elsewhere.
  • Facebook and Twitter have both taken recent actions to permit accountholders to turn their accounts into broadcast-only tools. There’s no doubt that’s the future of state actors on social media. Government actors want all of the visibility with none of the accountability (plus, elsewhere, the Australia defamation ruling in Fairfax v. Voller was hugely chilling on politicians). That’s why I continue to believe that social media should categorically wall off or eliminate government speakers–they will simply use social media as propaganda tools, which benefit neither the social media services nor the constituents.
  • It was interesting to see the court put so much emphasis on Facebook reactions as a form of speech. However, this is correct per Bland v. Roberts–surprisingly not cited by the court even though it was helpful on-point precedent.
  • The Ninth Circuit dodged the question of whether political campaign accounts could escape the forum analysis, but I think the opinion suggests they would. If so, it would be often easy for government actors to maintain their accounts in campaign status and moot this opinion’s restrictions.

The Emoji Usage

The court says in reference to Facebook reactions:

According to my research spreadsheet, courts have displayed emoticons or emojis in their opinions over 60 times. Nevertheless, this is the first time I can recall a court using emojis as word substitutes in their own discourse, rather than displaying the emojis as part of recounting the litigants’ evidence. I approve! 👍❤

Case citation: Garnier v. O’Connor-Ratcliff, 2022 WL 2963453 (9th Cir. July 27, 2022)

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