In this age of social media, it is no wonder that public officials use it to communicate with their constituents. Two members of a Southern California school board did just that. But to their dismay, two disgruntled parents repeatedly posted lengthy, unfavorable opinions on the officials’ public Facebook and Twitter pages. The school board members then barred the parents from commenting. The parents sued, and the Ninth Circuit affirmed that school board members have no right to prevent disparaging public comments from being posted on a public forum.

Plaintiffs Christopher and Kimberly Garnier are parents of children in the Poway United School District (PUSD). They are described as “active members of the PUSD community, who had long been vocal critics of the Board,” particularly about matters regarding race relations and alleged financial wrongdoing.” They filed a lawsuit under a section of the Civil Rights Act of 1871 that allows suits against the government for civil rights violations.

The Garniers sued Michelle O’Connor-Ratcliff and T.J. Zane, two members of the School District Board of Trustees (collectively The Trustees) in March 2022 because the Trustees “ejected” them from their public Facebook and Twitter pages. Plaintiffs asked for damages as well as declaratory and injunctive relief. The parents sued and won, but they were denied damages. Both parties appealed.

On July 27, the Ninth Circuit Court of Appeals affirmed the judgment of Judge Roger T. Benitez of the United States District Court for the Southern District of California. The appellate court ruled that the Garniers have a First Amendment right to post their views on the social media sites of public officials.

Writing for a unanimous panel, Judge Marsha Berzon authored an opinion on what she described as “an issue of first impression.” She began by acknowledging that social media sites “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” She then summarized the new question before the court: 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.”

Her question echoes that of District Judge Benitez, who summarized that the case had to proceed to trial in order to determine whether the Garniers’ postings were “reasonable, content-neutral restrictions on repetitive comments.”

Berzon provided the reasons for her ruling. She said the Trustees acted “under color of state law” when they created social media pages that are “public fora.” When defendants, both of whom identified themselves as “government officials” on their sites, barred plaintiffs from posting, they failed to “appropriately tailor” their restrictions to serve a significant public interest. In addition, barring opinion is wrong because the Trustees consistently solicited it from their constituents, although they gave no size or subject limits.

Defendants claimed that their decision to block the Garniers was due to the “repetitive nature of their comments…not their critical opinions.” It is true that the plaintiffs often posted hundreds of repetitive comments on Trustee’s social media sites. But Berzon doubted their explanation, partially because Facebook automatically “truncates lengthy posts” and because she found defendants’ arguments “inconsistent with the technological reality.” Filters that blocked plaintiffs as well as certain words were created.

Trustees’ appeal argued that their blocks of plaintiffs’ words “closed any public fora that may have been created” and rendered the lawsuit moot because the Garniers do not have standing to sue. Berzon rejected this argument, first because Twitter was never blocked and second because blocking the Garniers from commenting also blocked them from using emoticons, such as the “like” symbol or “an angry face.” Trustees failed to provide assurances that they will act differently in the future.

The opinion next turned to the question of whether Trustees’ rejection of the Garniers’ comments constituted state action. Berzon repeated that the Ninth Circuit had “never addressed whether a public official acts under color of state law by blocking a constituent from a social media page.” She concluded that “the close nexus between Trustees’ use of their social media pages and their official positions” showed that they were “acting under color of state law when they blocked the Garniers.”

In addition, the Trustees’ use of social media was directly connected to their official positions. They identified themselves as “government officials” on their pages. Their content was about PUSA policy issues. Their pages were about government status and the performance of their duties, rather than their personal political careers. Neither ever said their posts were just their personal opinions. All of these facts equal state action.

Once it was established that the Trustees were state actors, the court turned to the question of First Amendment violations. Since it had been established that social media accounts constitute public fora, it was then necessary to examine whether the Trustees’ decision to block the Garniers was “sufficiently tailored to a significant government interest” in order “to pass First Amendment scrutiny.”

It was not. The opinion noted that social media websites are “inherently compatible with expressive activity.” Berzon notes that “cyberspace” today is a “vast public forum.” Reasonable time, place and manner restrictions, like the famous prohibition against shouting “fire in a crowded theater” are permissible in order to assure that any censorship is content neutral and that it serves a significant government interest. Although defendants argued that plaintiff’s numerous and repetitive comments impeded comments by others, there was no proof of disruption. Plaintiffs’ comments were found to be “only minimally distracting.” The Garniers’ First Amendment rights were violated, and the District Court was correct when it granted the plaintiffs’ declaratory and injunctive relief.

The opinion concluded with a prophecy. “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.”