The U.S. Supreme Court on Monday agreed to hear the appeal of two local school board members who blocked two parents from their personal Facebook and Twitter accounts for allegedly spamming them with repetitious comments.
The parents sued under the First Amendment, and two lower courts ruled that even though the board members’ social media pages were not official government outlets, they focused on school board business. Thus, the blocking of some constituents from the pages amounted to government action.
The court granted review of O’Connor-Ratliff v. Garnier, as well as a companion case, Lindke v. Freed, which involves a city manager whose blocking of one resident from his Facebook page was upheld by a lower court. The cases, which will be heard in the court’s next term, could lead to an important decision on the rules for government officials’ engagement with citizens on social media, especially in an age when both in-person and online interactions are frayed by sharp disagreements over hot-button issues.
‘Civic-minded constituents’ or annoying serial responders?
The school board members’ case stems from 2014, when Michelle O’Connor-Ratcliff and T.J. Zane were first elected to the board of the 35,000-student Poway Unified School District in California. Both converted their campaign Facebook accounts into sites for information about their board service and the school district. O’Connor-Ratcliff did the same with her Twitter account.
On those personal sites, O’Connor-Ratcliff and Zane identified themselves as board members and posted about Poway district matters, such as upcoming board meetings, status reports about an interim superintendent search, and video clips of student musical performances.
Christopher and Kimberly Garnier, parents of three students who were attending district schools at the time, began posting responses to the board members’ social media posts. The Garniers believed the board members were not responding adequately to their emails, court papers say.
The board members eventually blocked the Garniers from Facebook, as well as from O’Connor-Ratcliff’s Twitter account.
The Garniers acknowledged that some of their posts were repetitious, but said in trial testimony they would sometimes post the same or similar comments on separate posts so more audience members would see the comments. Their lawyers describe the couple as “civic-minded constituents” who regularly attended board meetings and helped bring mismanagement in the district to light.
The Garniers sued O’Connor-Ratcliff and Zane, arguing that the decision to block their comments violated their First Amendment rights to free speech and to petition the government. A federal district court ruled for the parents, holding initially that the board members’ personal social media pages were “tools of governance” and that the interactive commenting features constituted a public forum.
After a trial on certain issues, the district court went on to rule that the board members “have leveraged technology to provide new ways for their constituents to gain awareness of their activities and initiatives as elected officials” and thus have helped “facilitate transparency in government.”
But while the initial blocking of the Garniers’ “unreasonable” postings was permissible, its continuation for some three years regulated the parents’ speech more broadly than necessary, the judge said.
Ruling for critics may mean less speech, board members argue
A panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district court last year. The three-judge panel ruled unanimously that the board members created a public forum because “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties.”
The board members identified themselves as government officials, listed their official titles in prominent places, and included an official district email address in the contact information on at least one of the pages, the court said.
“Both through appearance and content, the [board members] held their social media pages out to be official channels of communication with the public about the work of the” Poway district, the appeals court said.
Zane is no longer on the board, but O’Connor-Ratcliff was re-elected last year to a new four-year term, and she continues to block the Garniers on her Facebook and Twitter accounts.
In their appeal to the Supreme Court, the board members argue that the 9th Circuit’s ruling “will have the unintended consequence of creating less speech if the social-media pages of public officials are overrun with harassment, trolling, and hate speech, which officials will be powerless to filter.”
They also point out that the federal courts of appeals are divided in their approaches to government officials blocking constituents on personal social media pages. The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, last year upheld actions by the city manager of Port Huron, Mich., to block a citizen who had left comments on the manager’s Facebook page critical of the city’s handling of the Covid-19 pandemic.
The 6th Circuit held that no city resources were used for the manager’s Facebook account and he was under no obligation to maintain his personal page, and thus there was not government action.
The Supreme Court granted a review of the blocked citizen’s appeal of that decision and indicated it would hear it alongside the school board members’ case next fall, with separate arguments devoted to each.
High court weighed Trump blocking case until it became moot
The issue of officials blocking people on social media accounts has arisen at every level of government, including a handful of other school cases, although some of those involved official school district accounts.
When Donald Trump was in the White House, he was sued over blocking seven people from his personal Twitter account in 2017. The U.S. Court of Appeals for the 2nd Circuit, in New York City, held that Trump’s use of his personal Twitter account while in office was “governmental” rather than “personal” and that his effort to block individuals was government action.
The Supreme Court was weighing whether to grant review of that decision when Trump lost re-election in 2020. The court in early 2021 dismissed his case as moot and ordered the 2nd Circuit decision to be thrown out. By then, Twitter had removed Trump himself from its platform in the wake of the attack by Trump supporters on the U.S. Capitol.
Justice Clarence Thomas, in a solo opinion in that case, Trump v. Knight First Amendment Institute, expressed concern about the power of social media.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” Thomas said. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
