Illegal Block: Public officials who block the public on personal social media still may face first amendment scrutiny

The Ninth Circuit Court of Appeals recently issued a ruling in Garnier v. O’Connor-Ratcliff, finding two school board members had violated the First Amendment by blocking users from their personal social media pages. This case applied the new two-prong test adopted by the US Supreme Court in Lindke v. Freed.

Two members of a school district’s Board of Trustees posted on their public Facebook and Twitter about activities at the schools and actions of the Board, invited the public to attend Board meetings, and solicited input about Board decisions. Two parents began posting numerous and repetitive critical comments on the Trustee’s social media pages. In response, the Trustees deleted or hid those user’s comments. After some time, the Trustees began blocking those users from interacting with their social media pages. The parents brought suit under 42 U.S.C. § 1983 arguing that the Trustees had violated their First Amendment Rights. Following a bench trial, the district court held that the Trustees had acted under color of state law and violated the First Amendment by blocking the parents, and the Ninth Circuit affirmed that judgment. The Trustees then appealed to the US Supreme Court. After holding oral argument, the Supreme Court issued an opinion in Lindke, a similar case, in which the Court announced a new two-part test for determining whether a public official’s social media activity constitutes state action. The Supreme Court then vacated the Ninth Circuit’s decision in this case and remanded for proceedings consistent with Lindke.

In Lindke, the Supreme Court held that a public official’s social media activity is considered state action for purposes of § 1983 “only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”  

On remand, the Ninth Circuit applied the Lindke test to determine whether the Trustees acted under the color of state law. Both parties agreed that the case was moot against one of the Trustees, as he was no longer a member of the Board following the end of his term. In applying the first prong of the Lindke test to the remaining Trustee, the Board president, the Court found the Board president had actual authority to speak on the school district’s behalf through state law and the Board’s bylaws which encouraged electronic communications about school district business and authorized the Board president to communicate public statements on behalf of the Board. The Board president argued that she lacked authority to speak on behalf of the school district because her social media pages were not “official district social media platforms.” The Court disagreed, explaining that public officials’ statements may be considered state action even if they happen on personal social media accounts because the analysis is focused on the authority of the individual, not whether the social media account is an “official” account.   

In applying the second Lindke prong, the Ninth Circuit held that the Board president was purporting to exercise that authority on her social media pages because she identified herself as the Board president, regularly communicated about district business, had no disclaimer that her views were personal rather than official, and provided her official school district email address as a means of contact.  Unlike the “mixed-use” account at issue in Lindke, here, the appearance and content of the Board president’s social media account demonstrated the accounts were official in nature.  

The Court found the Board president’s blocking of the parents on her social media accounts constituted state action under Lindke.  

This decision provides further clarity on the new standard announced in Lindke that public officials who communicate through social media should keep in mind before removing public comments or blocking certain members off the public.