9th Circuit Court of Appeals holds that Removing Parents from Board-Ran Social Media Violated First Amendment Rights
Posted on August 04, 2022
Important Takeaways: Two parents of children attending the Poway Unified School District filed suit against the Poway Unified School District Board of Trustees (the “Board”) filed under 24 United States Code section 1983 alleging the Board violated their First Amendment rights when they were removed from social media ran by Board members. The issue here was whether the state officials, Board Members, violated the First Amendment by creating a publicly accessible social media page within their official capacity as government employees and then blocking members of the public from the page.
Facts: In 2014, two members of the Board created public Twitter and Facebook pages to promote their campaigns for Board positions. After being elected, they used these pages to inform the public about information in the School District and invite the public to Board meetings. Two parents used the page to comment with criticisms of the Board. The Trustees hid and deleted these comments at first but then blocked the Garniers from the social media pages altogether. The Garniers then sued to allege their First Amendment Rights had been violated. The District Court found, and the 9th Circuit Court of Appeals agreed that removing them from the public social media pages was a violation of their First Amendment rights. The question was whether the state officials, here the Board Members, violated the First Amendment by creating a publicly accessible social media page within their official capacity as government employees and then blocking members of the public from the page.
When the Facebook page went from campaign information to updates regarding the School District and Board, no rules were established around commenting, but only the owners of the page could create posts. The Garniers had expressed concerns regarding the School District at Board meetings and by emailing Board Members, but in 2015, when they did not feel the Board was being responsive enough, they began commenting on the social media pages. None of the comments used profanity or threatened physical harm and almost all related to the School District. After deleting the comments for a while, in 2017 the Garniers were blocked from the Facebook page. The Board Members then eventually used a word filter that virtually blocked everyone from commenting on their Facebook posts.
To make a claim under Section 1983, one must show the violation of a federal right, here the First Amendment right to Free Speech, was made by a person acting under the color of state law. Using the nexus test, the 9th Circuit found that since there was a close nexus between the Board Members’ use of their social media and their official positions, they were acting under the color of state law when they blocked the Garniers from the social media pages. They found this because the social media pages were presented as official outlets for performing their responsibilities as Board Members and had the effect of influencing the behavior of others. These social media pages are also related in a meaningful way to their governmental status. The comments that the Garniers made which led to them being blocked were linked to events that rose out of the Board Members’ official status. The comments were not directed at the Board members but rather at the School District as a whole. The Board members were acting under state law and therefore did violate Section 1983.
In deciding if the First Amendment had been violated, the Court first held that the Board members did create a public forum with the social media pages. The pages were open to the public and open for comment when they were created, making it a public forum. After the word filters were included the pages were limited public forums. For the regulation of speech in the public forum to not violate the First Amendment, it must First Amendment scrutiny. This means the state must have a significant state interest and their action in protecting that interest must be narrowly tailored. Although the Board members argued that they had an interest in allowing individuals to comment and engage, the Garniers’ comments did not prevent others from doing so. Others could still comment and there was no actual disruption to the purpose of the pages. The Board members also had no interest in continuing to block the Garniers after they implemented the word blocker. There was no significant interest in blocking the Garniers and therefore there was a First Amendment violation in doing so.
What this means: Any social media page or profile that allows commenting and is controlled by an individual who is using it in their official capacity as a state actor is a public forum. The individual controlling these pages must have a narrowly tailored significant interest in regulating that commenting or removing people from the page. These interests can be centered around safety, not just inconvenience or annoyance. Removing individuals from these pages without a significant interest is a violation of the First Amendment Right to Free Speech.
What is the name of the case and where you can read it: Garnier v. O’Connor-Ratcliff, 9th Circuit Court of Appeals, June 27, 2022. Read it here.
As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, and Kevin by email or at 406-542-1300 to discuss these issues.
