Law & Courts

School Board Members’ Use of Social Media Faces Key First Amendment Test in Supreme Court

By Mark Walsh — October 24, 2023 9 min read
The setting sun illuminates the Supreme Court building in Washington on Jan. 10, 2023.
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Amid a politically charged environment, where school board members across the nation are striving to engage with the public through social media, the U.S. Supreme Court is set to take up an important legal question: Whether board members can block certain constituents from their digital platforms.

The justices will consider whether two school board members in California engaged in “state action” when they blocked parents from social media accounts that the board members held out as “official” spaces for updates on school district business. The case of O’Connor-Ratcliff v. Garnier will be argued on Oct. 31.

The blocked parents sued and alleged that their First Amendment rights of free speech and to petition the government were violated. Ruling in favor of the parents last year, a federal appeals court said the board members had “clothed their pages in the authority of their offices and used their pages to communicate about their official duties.”

A friend-of-the-court brief filed by the California School Boards Association says that upholding that decision “could have catastrophic consequences by increasing the risk of litigation and, as a result, chilling speech and civic participation in school boards.”

The group, which is supporting the board members who blocked parents, says it has fielded many questions about the case’s impact on board members’ re-election campaigns and whether school boards themselves will have to police their members’ personal social media activity.

“Board members may opt to close their pages to public engagement rather than risk liability for moderating disruptive posts,” the CSBA brief says.

Meanwhile, the American Civil Liberties Union, which filed a brief supporting the blocked parents, says the case is an important test for how the Supreme Court views public officials’ activities on social media, especially during a term when the justices are taking up several cases about the First Amendment in the digital era.

“This is really a case about how we distinguish between public officials’ public and private capacities in the digital space,” said Evelyn Danforth-Scott, an ACLU staff lawyer who helps oversee its Supreme Court docket and co-wrote the organization’s brief.

While school board members and other public officials are entitled to their own First Amendment free speech rights in their private capacities, the officials’ pages in this case “gave off all the indicia of government authority [and thus] we have argued that the state action requirement is satisfied.”

Board member’s Facebook interests: ‘Being accessible and accountable’

The California 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, north of San Diego. Both had created public Facebook accounts during their campaigns, which they converted into platforms for information about their board service and the school district. O’Connor-Ratcliff did the same with her account on X, formerly known as Twitter.

On those Facebook and Twitter accounts, O’Connor-Ratcliff and Zane identified themselves as board members and posted frequently about Poway district matters, such as upcoming board meetings, status reports about an interim superintendent search, and video clips of student musical performances.

O’Connor-Ratcliff, who was re-elected last year to another four-year term on the Poway board, described herself on her Facebook page as a “government official.” One typical post displayed a photo of O’Connor-Ratcliff visiting a district elementary school: “Hanging with Principal Halsey & the Canyon View Coyotes on this hot, hot morning. Excited about your students’ new flexible seating rollout.”

Zane explained on his Facebook page that it was his “official” site “to promote public and political information.”

“My interests include: being accessible and accountable; retaining quality teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety,” Zane’s page said.

Zane, whose term on the board expired in late 2022, posted about many routine matters but also about school lockdowns following threats, an active shooter incident near one Poway district school, and an ongoing brush fire that forced the evacuation of another school.

Christopher and Kimberly Garnier, parents of three students who were attending Poway schools at the time, began posting comments to the board members’ social media entries.

Both had attended Poway school themselves, and they took an active interest in the district affairs. They attended board meetings and expressed concerns about financial mismanagement, and their lawyers say they were instrumental in bringing to light improprieties that led to the dismissal of the district’s then-superintendent. They were also concerned about alleged incidents of racist bullying in the district.

Christopher Garnier, in court testimony, said he and his wife were frustrated by time limits on public comments at school board meetings and by unresponsiveness by O’Connor-Ratcliff and Zane to their emails.

“They would never, ever respond to me,” he said in court in 2020. “I utilized the only resource that I had for communication and engagement, and that was through social media.”

The Garniers left comments about the financial mismanagement by a former superintendent and about alleged incidents of racism.

“I have children of color in the district, and I don’t want them going to school and seeing a noose or the profanity like that,” Kimberly Garnier testified.

(The Garniers, through their lawyers, declined an interview request. Lawyers for the board members did not respond to interview requests.)

O’Connor-Ratcliff and Zane blocked the Garniers from their social media pages, after they contend the parents spammed their sites with repetitive comments in response to various posts. On one occasion, Christopher Garnier posted 226 identical replies to O’Connor-Ratcliff’s Twitter account, one to every tweet she had posted.

Neither board member has argued that the Garniers’ comments used inappropriate language. They just found the spamming annoying and disruptive to the platform they were trying to maintain for other constituents.

“It would be fine to do back and forth with your clients if they weren’t spamming,” O’Connor-Ratcliff told the Garniers’ lawyer in the 2020 trial. “It’s their history. That’s what they’ve done all along.”

Christopher Garnier was pressed in court as to why he posted repetitively. He maintained that each of his comments was relevant to the post he was commenting on.

“Social media provides an opportunity … to create engagement, to have discourse, maybe banter,” Garnier said. “And when you have an opportunity … to write a comment after a post, you are able to utilize their platform or their page to engage.”

Lower court calls members’ pages ‘official channels of communication’

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.

The U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the district court last year. A three-judge panel unanimously held that “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.

Legal issues surrounding public officials’ use of social media have arisen from city halls and local school boards to the White House.

When Donald Trump was president, he was sued over blocking several 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 the case as moot and ordered the 2nd Circuit decision to be thrown out.

On Oct. 31, the same day it hears arguments in the school board members’ case, the high court will hear a separate case involving the city manager of Port Huron, Mich., who used his longtime personal Facebook account to discuss city business, including in 2020 about the city’s response to the COVID-19 pandemic. The city manager blocked a frequent critic who had posted critical comments about the city’s pandemic policies.

Lower courts in that case, Lindke v. Freed, ruled that the city manager’s Facebook page was not state action.

There have been other school board cases of social media blocking, although some have involved official school district accounts. In 2021, a federal district judge in Virginia ruled that the Frederick County school district engaged in viewpoint discrimination when it deleted comments and blocked a critic of its COVID-19 protocols and facemask policy.

Meanwhile, a North Carolina father was blocked from the Facebook page of his daughter’s school district after he posted a comment asking whether buses would be running on a snowy morning. In a friend-of-the-court brief filed in support of the Garniers, parent Steven Barrett says the district (which wasn’t identified in the brief) had a policy of only permitting positive comments on its Facebook page. Barrett wasn’t unblocked until he engaged the help of a lawyer, the brief says.

Reaching back to Edmund Burke on lawmakers and constituents’ views

In the Supreme Court, lawyers for O’Connor-Ratcliff and Zane argue that a public official’s operation of a social media page is not state action when it does not exercise any actual state duty or authority.

Ruling such a private page to be state action “would abridge officials’ own First Amendment rights to control the manner in which they use their personal social media pages to communicate with the public—as private individuals seeking both to exchange information with their fellow citizens and to persuade voters that they deserve to remain in office,” the board members’ brief argues.

Lawyers for the Garniers argue that because the board members “were doing their job” when they communicated about school board activities on their social media, “they were engaged in state action.”

Board members have a responsibility under California law to keep the public informed, and it did not matter that the school district itself did not mandate, control, or facilitate the board members’ private accounts, the Garniers’ brief says.

The Garniers’ lawyers refer to a famous 18th century observation by an Anglo-Irish philosopher and member of the British House of Commons about the importance of lawmakers at least giving serious consideration to their constituents’ opinions, even if they have a duty to sometimes disregard them.

The Poway board members “choice of 21st century social media cannot change the fact that they were engaged in fulfilling a responsibility that has been part of an elected official’s job since at least 1774 when Edmund Burke explained that ‘a representative ought always to rejoice to hear’ the public’s views.”

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