United States Supreme Court Will Decide Whether Public School Board Members’ Social Media Posts Constitutes State Action and Possible Free Speech Concerns

The United States Supreme Court (the “Supreme Court”) has agreed to hear an appeal from the Ninth Circuit Court of Appeals (the “Court of Appeals”) to decide whether two public-school board members’ Facebook pages constituted public forums and whether blocking individuals from posting comments on their pages violated the First Amendment’s free speech clause (O’Connor-Ratcliff v. Garnier, July 2022). The Supreme Court will hear oral arguments from the parties on October 31, 2023.

The case involves two members of the Poway Unified School District Board of Trustees (the “Board”). Both Trustees created their social media pages to promote their campaigns for the office of school board trustee and, after being elected, used their pages to inform constituents about goings-on at the district, invite them to attend Board meetings and to solicit input about Board decisions such as the Superintendent’s hiring process, budget planning and public safety issues. Two parents of children in the district brought a lawsuit after they were blocked from posting on the two Trustees’ social media pages. The parents do not dispute that they were vocal critics of the Board and that they often posted “negative” comments about the Board and the Trustees. The parents’ postings did not use profanity or threaten physical harm, but they were often “quite lengthy and frequently repetitive.” The two Trustees, frustrated with the parents’ repetitive posts, initially deleted or hid their comments from their Facebook pages but later blocked both parents entirely from their pages.

The parents sued the Board requesting monetary damages and injunctive relief to lift the blocks. The district court ruled in favor of the parents finding that the Trustees’ Facebook pages, as created, constituted public fora and that blocking the parents from posting on the pages violated their free speech rights under the First Amendment. The Board appealed the lower court’s ruling to the Ninth Circuit which upheld the decision in favor of the parents. The case was appealed to the Supreme Court and on April 24, 2023, they agreed to hear the case. 

The Court of Appeals’ decision noted that it has never addressed the issue of whether a public official is acting under state law when he/she blocks a constituent from their social media page. In examining the facts of the case, the decision held that the Trustees’ use of their social media accounts was connected to their official positions as public-school board members. Both Trustees identified themselves on their Facebook pages as “government officials,” used their official titles and listed their contact email as the email addresses provided to them by the school district. The Court of Appeals went on to find that the Trustees’ social media pages provided the public with information about the Board’s official activities and solicited input on Board policy issues, “so, 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.” Therefore, the Court of Appeals agreed that the Trustees were acting as state actors, and subject to the rights and obligations provided by the U.S. Constitution.

In examining the parents’ claim that their right to freedom of speech were violated, the Court of Appeals stated that it did not need to decide whether the Trustees’ decision to block the parents from their Facebook pages was unlawful viewpoint discrimination. The Ninth Circuit said it is a close call on the question of whether the Trustees’ actions were based on the content of the parents’ speech and therefore violating the First Amendment. The Court of Appeals stated it did not need to answer that question because the Trustees’ decision to completely block the parents from their Facebook pages was not a reasonable time, place or manner restriction and was not narrowly tailored to serve a significant government interest. The Court of Appeals acknowledged that public actors have the right to regulate speech if it is disruptive. In this case, however, there were no facts showing that there was any actual disruption to the Trustees’ Facebook pages or interference with the Trustees’ ability to host discussions. Additionally, the Court noted that Facebook automatically trims lengthy comments requiring viewers interested in reading the comments to click a “See More” button thereby minimizing any concerns about disruption. Finally, the decision noted that viewers of the Trustees’ social media pages can “with the flick of a finger simply scroll past repetitive or irrelevant comments.”  The Trustees’ blocking of the parents from their social media pages, according to the Court of Appeals, “burdens substantially more speech than is necessary and therefore is not narrowly tailored.” As such, the Trustees’ blocking the parents from posting on their Facebook pages violated the parents’ First Amendment rights.

The Ninth Circuit agreed with the district court’s decision to grant the parents’ request for injunctive and declaratory relief. However, it denied the parents’ monetary damages claim stating that because this issue was a novel one, and in the absence of any significant body of law that could have been relied upon, both Trustees were entitled to qualified immunity which precludes awarding of monetary damages.

The Supreme Court will have the final say on whether public officials engage in “state action,” subject to the First Amendment, when they block individuals from their social media sites. Public officials that have social media sites which contain or use information about their public office, or which share information regarding the public body, its activities, and policies, would be wise to keep a close eye on this case. Additionally, a revamp of your social media pages may be warranted especially if the public official takes action to delete or block certain postings and/or comments on its page. We will monitor this case and the upcoming oral arguments and issue additional publications when appropriate. The Supreme Court will likely not issue a ruling on this case until summer of 2024.

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