9th Circuit Applies Supreme Court Test to Social Media Case

May 28, 2025

Important Takeaways: The Ninth Circuit has adopted the Supreme Court’s two-part test from Lindke v. Freed(2024) to determine if social media activity by a public official is state action.

Facts: Christopher and Kimberly Garnier (the Parents) filed a lawsuit alleging members of a California school board (Trustees) had violated the First Amendment under 42 USCA § 1983.

Three Trustees regularly used their public social media (X and Facebook) accounts to discuss the happenings at their school district. Posts ranged from updates on school board actions to requests for input on upcoming discussions and events. The Parents often left critical and repetitive comments under these posts. After two years of critical comments, the Trustees blocked the Parents from viewing or commenting on social media posts.

The lower court held that the Trustees violated the Parent’s First Amendment right to free speech by not letting them comment on their posts because the social media accounts were a ‘public fora’ (public space for communication). The Ninth Circuit then heard the case and affirmed the lower court’s decision.

The Supreme Court of the United States agreed to hear this case. However, the Supreme Court decided Lindke v. Freed on the same day it was scheduled to hear this case. In Lindke, the Court adopted a new test to determine if a public official’s social media activity constitutes state action. If it does, blocking community members from participating in state action violates the First Amendment.

The Supreme Court explained that a public official’s (i.e. board member) social media account will be viewed as state action under § 1983 only if:

1. The public official possessed actual authority to speak on the State’s behalf; AND
2. It was the public officials’ purpose to use their authority to speak on the State’s behalf.

The Supreme Court then remanded the case back to the Ninth Circuit to apply the Lindke Test.

The first prong of the test refers to the official’s ability to speak on the State’s behalf. The relevant question is whether the official’s responsibilities include making official announcements. To determine whether the official had authority, courts will look to statutory law, ordinances, regulations, and past practices. Past practices need to be well-established and persistent.

Statutes, ordinances, and regulations do not need to give the official specific authorization for social media activity. Instead, the power can be granted through a broad policy that delegates official announcement duties to officials.

In the case at hand, the Ninth Circuit ruled that California law (statute) authorized school boards to inform the citizens of their district about educational programs and activities. Additionally, the school board bylaws (regulation) specifically addressed how board members could inform their community of school district matters via electronic communication. The Ninth Circuit held that the Trustees had the authority to speak on the State’s behalf.

The second prong of the test refers to the appearance and function of the account. There are three types of social media accounts for trustees: official use, personal use, and mixed-use.

Differentiating between public use and personal use can usually be accomplished by examining the account as a whole. The Supreme Court explained in Lindke that an account carrying a disclaimer stating the posts reflect personal views is entitled to a strong presumption that all the posts on the account were personal. However, this presumption is not absolute. On the other side, social media accounts that have been passed down from trustee to trustee carry a strong presumption that all posts are for official use.

When an account is used for mixed-use, meaning it contains both personal and official content, courts will examine each post for its content and function to determine if it was made in a personal or official capacity.

Some factors that indicate a post was made in an official capacity include the trustee stating they are speaking on behalf of the State, the post including information not publicly available, or the trustee utilizing government staff to create the post.

In the case at hand, the Ninth Circuit began its second-prong analysis by determining the type of social media account the Trustees used. One of the Trustees included in her Facebook account bio that she was the president of the school board. The same Trustee held herself as a ‘Government Official’ on her X account and provided her school email as contact information. Notably, the Trustees’ accounts did not contain any personal contact information or any information unrelated to the district. With these facts, the Ninth Circuit ruled that the social media accounts were used for official purposes.

The Ninth Circuit applied the Lindke test and held that the Trustees violated the First Amendment by blocking community members from viewing and commenting on social media accounts. These accounts contained communications from state officials, meaning the information must be public.

What this means: School Board members, or any other public officials, cannot block community members from a social media account if the account appears to be for the use of a public official. Board members can escape this dilemma by clearly stating in the account bio: “This account is for personal use only. The beliefs expressed are not shared by the ______ School District.” Additionally, school districts should ensure their policies and procedures do not permit board members to relay information to the public via their personal social media.

Alternatively, school districts can create social media accounts associated with the district to update the community. The district could pass the login information from official to official and warn the account operator that they cannot block individuals from the account or prevent specific individuals from commenting.

Garnier v. O’Connor-Ratcliff, Ninth Circuit Court of Appeals, May 14, 2025.

Please contact Bea, Megan, Kevin, Beth, or Kali if you have any questions.