May 24, 2023
As social media and K-12 education issues continue to evolve, on April 24, 2023, the U.S. Supreme Court granted certiorari in a case concerning an interesting, yet important issue: Under the First Amendment, when can elected school board members block individuals from their personal social media accounts?
In the case O’Connor-Ratcliff v. Garnier, No. 22-324, __ S. Ct. __, 2023 WL 3046119 (Apr. 24, 2023), parents asserted a 42 U.S.C. § 1983 claim against two local school board members, asserting a violation of their First Amendment speech rights. The parents alleged that when the school board members blocked them from their social media accounts, the parents were unlawfully prevented from accessing a public forum and were prevented from exercising their rights to petition the government.
The case arose after two elected members of a school district’s board created publicly accessible social media accounts. The trial court determined the board members used the social media accounts to share information about the school district and seek public feedback. According to the trial court, on the social media accounts, the school board members identified themselves as government officials, and one of the board members labeled his account as the official page for his office as school board member.
The dispute came to a head when the parents of children attending schools in the district posted repetitive comments and replies on the school board members’ social media accounts. For example, the trial court noted one parent posted the same comment on 42 different posts on a board member’s social media account and made the same reply on 226 posts on another social media account. The parents did so because they claimed the board members were not adequately responding to their emails. The parents claimed they made these repetitive posts so more audience members would be able to see the comments. Ultimately, the school board members blocked the parents from the social media accounts.
The parents filed suit in federal court, alleging violations of their First Amendment rights. The federal district court ruled for the parents and the U.S. Court of Appeals for the Ninth Circuit affirmed. Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1171 (9th Cir. 2022). The Ninth Circuit held that, based on the “appearance and content” of the social media pages, the school board members held out those accounts as official channels of communication. Id. The Ninth Circuit concluded that the school board members acted under the color of state law when they blocked the parents because there was a close nexus between the school board members’ use of their social media accounts and their official positions. Id. at 1170.
On appeal to the U.S. Supreme Court, the school board members insist that they did not engage in state action when they blocked the parents because they did not exercise a state-created right or privilege when they operated their personal social media accounts. They assert that they created and maintained the accounts in line with their personal pursuits — not in performing their official duties. They also argue that characterizing their action as state action “will have the unintended consequence of creating less speech if the social-media pages of public officials are overrun with harassment, trolling, and hate speech, which officials will be powerless to filter.” Petition for a Writ of Certiorari at 4, 25, O’Connor-Ratcliff, (No. 22‑324).
The parents continue to maintain that the school board members acted under color of law when they blocked the parents from the social media accounts because the content of the social media accounts “‘was overwhelmingly geared toward’ [District] business” and they operated those accounts“ because they are elected public officials with a desire and need to communicate with constituents.” Brief in Opposition at 32, O’Connor-Ratcliff, (No. 22‑324).
The decision in this case will have important implications on the First Amendment restrictions on public officials’ use of social media. The Supreme Court will consider this case, and its companion case involving a city manager who blocked a resident from his social media page, in its next term, which begins in October 2023. These cases are an important reminder to school board members, and public officials generally, that their characterization and use of their social media accounts for official business may be relevant to determine whether those accounts constitute a public forum and whether their acts through those accounts may be considered state action.
McGuireWoods will continue to monitor this case as developments unfold. The firm has a dedicated K-12 practice that monitors developments in this area. Please contact any of the authors of this article for more information.