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9th Cir.: Political Officials' Blocking of Social Media Comments May Violate the First Amendment
From today's decision in Garnier v. O'Connor-Ratcliff, written by Judge Marsha Berzon and joined by Judges Richard Tallman and Michelle Friedland:
Today, social media websites like Facebook and Twitter are, for many, "the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." Packingham v. N.C. (2017). Accordingly, social media sites "can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.".
Unsurprisingly, social media's capacity for facilitating communication and stirring public debate has not been lost on public officials. From local county supervisors and state representatives to the President of the United States, elected officials across the country increasingly rely on social media both to promote their campaigns and, after election, to communicate with constituents and seek their input in carrying out their duties as public officials.
This case concerns a dispute arising from two public officials' use of social media to communicate with constituents about public issues. Beginning around 2014, two members of the Poway Unified School District ("PUSD" or the "District") Board of Trustees, Michelle O'Connor-Ratcliff and T.J. Zane (together, "the Trustees"), created public Facebook and Twitter pages to promote their campaigns for office. After they won and assumed office, the two used their public social media 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.
But public engagement with their social media pages was not all [thumbs-up emoji]s and [heart emoji]s. Two parents of children in the School District, Christopher and Kimberly Garnier, frequently left comments critical of the Trustees and the Board on the Trustees' pages, sometimes posting the same long criticisms repeatedly. After deleting or hiding the Garniers' repetitive comments for a time, the Trustees eventually blocked the Garniers entirely from their social media pages. The Garniers sued, asserting that the Trustees violated their First Amendment rights by ejecting them from the social media pages. After a bench trial, the district court agreed with the Garniers that their First Amendment rights had been violated. Both parties appeal….
We have never addressed whether a public official acts under color of state law by blocking a constituent from a social media page. Doing so now, we conclude that, given the close nexus between the Trustees' use of their social media pages and their official positions, the Trustees in this case were acting under color of state law when they blocked the Garniers.
The Trustees' use of their social media accounts was directly connected to, although not required by, their official positions…. [T]he line of precedent most similar to this case concerns whether off-duty governmental employees are acting under color of state law. As here, the focus in such cases is on whether the public official's conduct, even if "seemingly private," is sufficiently related to the performance of his or her official duties to create "a close nexus between the State and the challenged action," or whether the public official is instead "pursu[ing] private goals via private actions." …
O'Connor-Ratcliff's and Zane's use of their social media pages qualifies as state action under § 1983. First, the Trustees "purport[ed] … to act in the performance of [their] official duties" through the use of their social media pages. 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."
Consistent with the Trustees' official identifications on their social media pages, 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. O'Connor-Ratcliff and Zane regularly posted about school board meetings, surveys related to school district policy decisions, the superintendent hiring process, budget planning, and public safety 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.
Second, the Trustees' presentation of their social media pages as official outlets facilitating their performance of their PUSD Board responsibilities "had the purpose and effect of influencing the behavior of others." Zane's Facebook page, as of 2017, had nearly 600 followers, and O'Connor-Ratcliff's had nearly 300. 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. It was by "invoking" their " 'governmental status' to influence the behavior of those around" them that the Trustees were able to muster this kind of public engagement with their social media pages.
Finally, the Trustees' management of their social media pages "related in some meaningful way" to their "governmental status" and "to the performance of [their] duties." 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. More generally, the Trustees' use of social media to keep the public apprised of goings-on at PUSD accords with the Board's power to "[i]nform and make known to the citizens of the district, the educational programs and activities of the schools therein." Cal. Educ. Code § 35172(c)….
Even though they clothed their pages in the authority of their offices and used their pages to communicate about their official duties, the Trustees contend that their use of social media did not constitute state action because the pages, they maintain, were personal campaign pages designed only to advance their own political careers, and because PUSD provided no financial support or authorization for the pages. Many of the Trustees' posts did concern workaday visits to schools and the achievements of PUSD's students and teachers, material that could promote the Trustees' personal campaign prospects. But 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.
As to the lack of PUSD funding or authorization, the Trustees' pages did not contain any disclaimer that the "statements made on this web site reflect the personal opinions of the author" and "are not made in any official capacity." To the contrary, both in the appearance and the content of the pages, the Trustees effectively "display[ed] a badge" to the public signifying that their accounts reflected their official roles as PUSD Trustees, whether or not the District had in fact authorized or supported them.
The court concluded that this position was consistent with the views of the Second, Fourth, and Eighth Circuits (the Second Circuit decision being the one involving then-President-Trump's blocking of some people from his Twitter account; that decision was vacated as moot by the Supreme Court, after President Trump left office), and acknowledged disagreement with the Sixth Circuit's views in Lindke v. Freed.
It then concluded that the comment space on the Trustees' web pages were originally designated public fora (where the government intentionally opens up a nontraditional forum for public discourse") but one of them was later changed to a limited public forum ("a sub-category of a designated public forum that 'refer[s] to a type of nonpublic forum that the government has intentionally opened to certain groups or to certain topics'"). And it concluded that, in this case, the blocking of plaintiffs was unconstitutional even in the absence of viewpoint discrimination:
We note at the outset that it is a close question whether the Trustees' decisions to block the Garniers were viewpoint discriminatory. Whether in a designated public forum or a limited public forum, "restrictions based on viewpoint are prohibited." The Trustees maintain that they blocked the Garniers because of the repetitive nature of their comments, not because of their often-critical opinions of the Trustees. Specifically, the Trustees testified that they blocked the Garniers because the Garniers were "spamming [them] repetitively," and the repetitive nature of their comments tended to "fill up the page."
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.
In the end, we need not resolve whether the Trustees' decision to block the Garniers was viewpoint discriminatory. Even when viewed as a content-neutral time, place, or manner restriction intended to eliminate repetitive comments, the Trustees' complete blocking of the Garniers from their social media pages violates the First Amendment.
In a designated public forum, such as O'Connor-Ratcliff's Twitter page or the Trustees' Facebook pages before the implementation of word filters, "the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions" are "narrowly tailored to serve a significant governmental interest" and "leave open ample alternative channels for communication of the information." Likewise, "speakers can be excluded" only when that exclusion is "narrowly drawn." A time, place, or manner restriction "need not be the least restrictive or least intrusive means of" serving the government's content-neutral interests. But it may not "burden substantially more speech than is necessary to further the government's legitimate interests," nor may the government "regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals." Accordingly, "the existence of obvious, less burdensome alternatives is 'a relevant consideration in determining whether the "fit" between ends and means is reasonable.' "
Under this standard, O'Connor-Ratcliff's decision to block Christopher Garnier from her Twitter page and the Trustees' initial decision to block the Garniers from their Facebook pages were not narrowly tailored to serve a significant governmental interest.
(i) First, on the record of this case, the Trustees' decision to block the Garniers from the designated public fora did not advance a significant governmental interest…. 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. Again, 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. Indeed, no matter how many comments or reactions are left in the interactive spaces underneath a Facebook post or a Tweet, the content of the original post remains prominent and unaffected; comments therefore do not, as the Trustees assert, have the effect of "pushing down anything" that they posted or meaningfully distracting from the "streamlined, bulletin board" appearance they say they wanted for their social media pages.
It is apparent that the Garniers' repetitive comments bothered the Trustees. But there is no evidence that the repetitive comments "actually disturb[ed] or imped[ed]" the Trustees' posts or prevented other viewers of the Trustees' accounts from engaging in discussion.
Our cases governing the application of rules of decorum at local government meetings are not to the contrary, as they address a meaningfully different risk of disruption than the risk presented by the Garniers' comments. In physical city hall meetings, where there is limited time and space available for public remarks, lengthy, "irrelevant or repetitious" comments "interfere with the rights of other speakers" or prevent the government "from accomplishing its business." The only way to keep unruly speakers from impeding the ability to hear out a broad range of opinions from the public may be to cut off the microphone or to eject the speaker from the room. Accordingly, rules of decorum applied to limit disruption at city council meetings "are not facially over-broad where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting."
In contrast to meetings in the physical world, the features of Facebook and Twitter rendered the Garniers' repetitive comments only minimally distracting. The Garniers' lengthier Facebook comments were automatically truncated, and viewers of the Trustees' pages could easily ignore their comments on either platform by scrolling past them. For that reason, the Garniers' comments did not prevent the Trustees "from accomplishing [their] business in a reasonably efficient manner." Nor did the Garniers' comments "interfere with the rights of other speakers," who remained free to ignore the Garniers' comments and to leave their own. Id.
"Actual disruption means actual disruption," not "constructive disruption, technical disruption, virtual disruption, nunc pro tunc disruption, or imaginary disruption." The Trustees' concerns about the "visual clutter" created by the Garniers' comments, or the risk that their comments would upset the "nice and streamlined" appearance of their pages, do not on the present record amount to the kind of disruption that alone can support the decision to block the Garniers….
(ii) Even if the Garniers' comments did interfere with the Trustees' interests in facilitating discussion or avoiding disruption on their social media pages, the Trustees' decision to block the Garniers "burden[s] substantially more speech than is necessary" and therefore is not narrowly tailored. Blocking the Garniers did not stop them from leaving only long, repetitive comments. The blocking prevented them from leaving any comments at all, no matter how short, relevant, or non-duplicative they might be. Further, O'Connor-Ratcliffe's blocking of Christopher Garnier on Twitter prevented him from even viewing her Tweets.
The overbreadth of the Trustees' decision to block the Garniers is particularly apparent on Facebook, where the Trustees had at their disposal "easily available alternative modes of regulation" that would have had "considerably less impact on speech"—namely, the ability to delete or hide unduly repetitive comments. The Trustees did exactly that before blocking the Garniers. The Trustees testified that deleting the Garniers' comments took only a few seconds. The easily available alternative of deleting only repetitive comments rather than blocking the Garniers entirely accomplished the same goal—avoiding potentially disruptive repetitive posts—without eliminating the Garniers' ability to interact with the Trustees' pages to the extent they did so in an appropriate manner. {Twitter began permitting users to hide replies to their Tweets in 2019.}
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. Had the Trustees established such rules, it is possible that the Garniers would not have continued to post the same messages repeatedly, knowing that such comments could lead to their being blocked from the page. But the Trustees never established any rules of engagement with their social media pages and so never determined whether such rules would be an effective means of reducing assertedly disruptive comments.
Although the narrow tailoring requirement is "just moderately stringent," regulations of speech must "be targeted at real problems, and carefully calibrated to solve those problems." In light of the minimal disturbance caused by the Garniers' comments and replies and the alternative methods available to the Trustees to address any such disturbances, we conclude that the Trustees' blocking of the Garniers on Twitter and on Facebook was not narrowly tailored….
