Ninth Circuit Holds School Board Trustee Liable for Blocking Public Comments on Her Social Media Account

By John S. Delikanakis and Kyle Catarata¹

Recently, the Ninth Circuit had the opportunity to apply the U.S. Supreme Court’s test laid out in Lindke v. Freed (March 2024)² to determine whether a public official’s use of social media is state action subject to First Amendment liability claims. The published opinion in Garnier v. O’Connor-Ratliff offers practical guidance to public officials and public employers regarding prudent usage of social media by public officials.
 
Procedural Facts

Michelle O’Connor-Ratcliff and T.J. Zane (Ratcliff and Zane respectively and the Trustees collectively) were members of the Poway Unified School District (PUSD) Board of Trustees. Both used Facebook and Twitter to communicate with the public regarding their activities as PUSD Trustees. Christopher and Kimberly Garnier (the Garniers) posted numerous and repetitive negative comments regarding the Trustees on those social media accounts. The Trustees deleted these negative comments and eventually blocked the Garniers from posting on the social media accounts.
 
The Garniers successfully sued the Trustees under 42 U.S.C. § 1983 alleging First Amendment violations, seeking money damages and declaratory and injunctive relief. They secured judgment for declaratory and injunctive relief in their favor. The Ninth Circuit affirmed. The Trustees petitioned the U.S. Supreme Court for a writ of certiorari solely on the Ninth Circuit’s determination that they engaged in state action subject to the First Amendment. That petition was granted considering the Supreme Court’s decision in Lindke, which resolved a Circuit-split on how to identify state action when public officials use social media. The Court remanded the case back to the Ninth Circuit for reconsideration under Lindke. The Ninth Circuit again affirmed the district court’s judgment in favor of the Garniers. Zane’s term as a PUSD Trustee ended in December 2022. On remand, both parties stated at oral argument that the appeal was moot as to Zane.
 
Relevant Facts

Ratliff maintained social media pages before being elected to the PUSD Board of Trustees. After her election, Ratliff used her publicly accessible pages to post PUSD information, such as job openings, board meeting summaries, budget information, and other public-related information. Ratcliff identified herself as “a Government Official” at the top of her Facebook “Home” page and as president of the PUSD Board. That title appeared in the “About” section of Ratcliff’s Facebook page and directly under her name on her X (formerly known as Twitter) page. Ratcliff used her Facebook and X pages to post almost exclusively about the PUSD and Board activities and page to solicit feedback from the pubic and to communicate with individual constituents. The Facebook page listed her official PUSD email address as a means of contact. Her social media did not include a disclaimer that any content was intended to be personal. Finally, Ratcliff maintained a separate private Facebook page for engaging with close friends and family.

The U.S. Supreme Court’s Test in Lindke and the Ninth Circuit’s Analysis

Applying the framework established in Lindke, which requires that a public official (1) must have authority to speak for the State and (2) must appear to exercise that authority on social media to constitute state action under § 1983, the Ninth Circuit concluded that O’Connor-Ratcliff acted under color of state law when she blocked the Garniers from her social media pages.
 
First Step Analysis: The first step in Lindke asks whether the public official possesses the power and authority to speak on behalf of the State. Courts can determine this through the sources listed under 42 U.S.C. § 1983: “statute, ordinance, regulation, custom, or usage.”³ Courts have recognized that state law may grant officials “broad responsibility,” which can include the authority to make official announcements on a subject. The PUSD Board Bylaws described board members’ role in communicating information to the public and recognized the significance of electronic communication as an efficient way to expedite information with the public.⁴ “The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.”⁵ Given that the bylaws are legitimate sources of authority, the PUSD bylaws confirmed O’Connor-Ratcliff’s power and authority to speak on behalf of the District.⁶
 
Second Step Analysis: The second Lindke step states that for social-media activity to constitute state action, an official must not only have state authority, but he must also use it in furtherance of her public duties.⁷ “Generally, a public employee purports to speak on behalf of the State while speaking in his official capacity or when he uses his speech to fulfill his responsibilities pursuant to state law. If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.⁸ There must be a connection between the official’s authority and “the gravamen of the Plaintiff’s complaint.”⁹
 
The “appearance and function” of the official’s social media activity is relevant to this inquiry. Where a mixed-use account is at play — an account that includes posts made in both personal and official capacity — courts may need to engage in further inquiry to determine the post’s “content and function.”¹⁰ Specific action taken by the public official can also affect the analysis. Pertinent factors that an official is exercising authority in an official capacity include invocation of state authority, the post’s legal effect, and that the post shares official information not publicly available.
 
Yet, officials also have the right to speak about public affairs in their personal capacities. Because many officials possess a broad portfolio of governmental authority that includes routine interaction with the public, it may not be easy to discern a boundary between their public and private lives. Thus, it is crucial for the Plaintiff to show that the official is purporting to exercise state authority in specific posts.¹¹ 
 
Furthermore, the “nature of the technology mattered to the state-action analysis.”¹² In Lindke, the public official blocked the petitioners’ Facebook comments. If page-wide blocking was the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. Thus, a public official who fails to keep personal posts in a clearly designated personal account exposes herself to greater potential liability.¹³
 
A Few Key Takeaways

Public officials who frequently use personal social media accounts to share official information, identify themselves by their government titles, or solicit public engagement risk having their actions deemed as state action under § 1983. Under the Supreme Court’s Lindke test, courts assess whether the official publicly expressed the purported authority to speak on the state’s behalf and whether they appeared to exercise that authority online. Similarly, the Ninth Circuit has held that blocking users from commenting or posting on accounts used for public functions can raise constitutional concerns and expose public officials to liability under 42 U.S.C. § 1983. In these cases, courts carefully examine whether social media presence serves as a governmental role or a private one. To avoid First Amendment liability, officials and government entities should clearly separate personal and official accounts, include disclaimers, avoid using personal pages for government communications, and engage in training on how to distinguish official speech from private speech.