As more public agencies and officials maintain social media accounts for sharing and reporting public business, questions have arisen about what restrictions officials may impose on how constituents follow or interact with those accounts. Recently, the Ninth Circuit Court of Appeals clarified that social media accounts used by school officials to communicate on public matters might be considered public forums. (Garnier v. O’Connor-Ratcliff (9th Cir. 2022) (Case No. 21-55118.) Accordingly, the First Amendment may limit the ability of officials to place restrictions on who may comment or otherwise interact with such accounts. As this is the first ruling in the Ninth Circuit on this topic, officials should review how they administer their social media accounts to ensure compliance.
In 2014, two individuals running for school board created public Facebook and Twitter pages as part of their campaign efforts. Initially, the individuals only used the accounts for campaign activities. Following their successful elections, the Trustees continued to use the pages to post information regarding district business and board activities and to invite public comment and discussion of their posts.
In approximately 2015, a local couple who had children in the district and were known to be critics of the board began posting lengthy and repetitive comments on the Trustees’ social media posts. For example, identical comments were made to 42 separate posts on one of the Facebook pages and 226 duplicate replies to each tweet written on one of the Twitter pages. Frustrated with repeatedly having to hide or delete such comments, in 2017, the Trustees took action to block the couple from their pages. After blocking the couple, the Trustees began using Facebook’s “word filter” feature, effectively preventing comments on their Facebook pages but still allowing “likes” or other reactions from those who were not blocked. Following these actions, the couple filed a lawsuit claiming that the Trustees’ pages were public forums and that blocking them from commenting on those pages resulted in violations of their First Amendment rights.
The Court of Appeals analyzed whether an individual public official’s actions of blocking a constituent from a social media page created by the official could violate the First Amendment rights of the constituent.
First, the Court determined that the Trustees acted as state actors (as opposed to private individuals) when they blocked the constituents because of the “close nexus between the Trustees’ use of their social media pages and official positions.” The Court of Appeals found that the use of the social media accounts indicated that the Trustees “purported . . . to act in the performance of their official duties” and that the active solicitation of comments and communication of board business suggested their accounts were “related . . . to performance of their duties.” Third, the Court of Appeals determined that the act of blocking the constituents was itself related to comments about the district and board, noting that the pages did not contain disclaimers indicating that the comments reflected the “personal opinions of the author.”
Second, the Court determined that the social media accounts created a designated public forum (at least before word filters were imposed on the pages). While the government may regulate content in a designated public forum, the Court concluded that such restrictions must be narrowly tailored to time, place, and manner restrictions (i.e., a logistical limitations not based on the content or viewpoint of a comment or commenter). In this case, the Court of Appeals determined that “blocking” a constituent from the page prohibits them from participation and is not an appropriate time, place, and manner restriction. The Court went on to opine that even when the Trustees established policies by placing the word filters on the page, blocking the couple was still not narrowly tailored because it prohibited them from participating (including “liking” a post), which other constituents could still do.
Ultimately, the Court held that the Trustees could not block individual constituents from interacting with their official social media accounts. However, this decision does not mean that public officials are powerless to use or control how they use social media to engage the public. Importantly, this decision seems to suggest that policies that block all comments or reactions, as opposed to those of specific individuals, would not run afoul of the First Amendment. However, as the Court of Appeals noted, this analysis is fact-specific and will likely continue to be a developing area that public officials will want to watch.
As a result of this Court decision, public officials and districts alike must be more cognizant of how they use social media and internet communication for official general business. Accordingly, we recommend that public officials and other public entities review their social media and internet mediums to determine whether they have created designated public forums (intentionally or not) and whether any restrictions they have placed on those forums comport with this decision.