A federal appeals court ruled Wednesday in a case from the Poway Unified School District that public officials who use social media accounts to discuss official duties can violate free speech rights when they block comments.
The unanimous ruling from a panel of the 9th U.S. Circuit Court of Appeals centered on the Facebook and Twitter pages of school district trustees T.J. Zane and Michelle O’Connor-Ratcliff. The pair posted information about district business on the pages and in 2017 blocked comment from two parents in the district, Christopher and Michelle Garnier.
The couple filed a federal suit contending the blocking violated their First Amendment rights, and a San Diego judge ruled in their favor in January 2021.
The latest ruling, which upheld the lower court decision, marked the first time the federal appeals court had weighed in on the often-contentious issue of public officials blocking constituents from posting comments or replies on their social media pages. The ruling was in line with similar rulings from three other appellate circuits around the country.
Zane and O’Connor-Ratcliff had set up Facebook pages as part of their election campaigns in 2014, and O’Connor-Ratcliff in 2016 set up a Twitter account. After winning the election they continued to use the pages to discuss district issues and actions. They also had private Facebook pages which they shared only with friends and family, the court said.
Judge Marsha Berzon wrote that the close link between the use of the social media pages and their official positions meant the pages served as a kind of public forum for the two trustees to carry out their public duties.
The court further said that blocking the Garniers violated the First Amendment because it was not a narrowly drawn limitation that would serve a compelling government interest — the criteria under which a government can limit a constitutional right.
Berzon wrote that while there are differences between the virtual space of a social media page and the three-dimensional space of a school district meeting, fundamental constitutional rules apply to both.
“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them,” she concluded.
Berzon said that the comments from the Garniers did not threaten or use profanity, but their comments were “often quite lengthy and were frequently repetitive of other comments they had posted on the Trustees’ social media communications.”
The comments were primarily concerned with alleged wrongdoing by the district’s former Superintendent John Collins — who pleaded guilty to a misdemeanor in 2018 — and race relations in the district, she said.
Cory Briggs, the lawyer for the Garniers, said the ruling affirmed that the First Amendment applies to official social media pages of public officials, who can’t simply silence people who are critical of them.
“This is something they open to everyone, and the people who get canceled or blocked are the people whose messages they don’t like,” said Briggs.
Zane responded to an email request for a comment on the ruling with a single word.
“Meh,” he wrote.
O’Connor-Ratcliff and a lawyer for the district did not respond to messages Wednesday.
David Loy, the legal director for the First Amendment Coalition, said the ruling was significant because it was the first time that the 9th Circuit, which covers nine states plus Guam and the Northern Mariana Islands, had ruled that a public official’s social media page can be considered a public forum under the First Amendment.
Some public officials have a dual presence on social media — a clearly labeled official page and a clearly labeled private page or account, he said. While they can manage their private pages as they see fit, on the official page acting on behalf of the government they have to follow the First Amendment.
“You can’t limit or block people just because you don’t like what they have to say,” Loy said. “It’s the same as in a city council meeting — you can’t drag people away from the podium because you don’t like what they say. That’s the price you pay for serving in government. You have to listen to the people who annoy you.”
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