Can Government Officials Block the Public on Social Media?

The U.S. Supreme Court has granted certiorari in two cases involving government officials who blocked individuals from their social media accounts.

One of the cases, Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022), cert. granted, O’Connor-Ratcliff v. Garnier, No. 22-324 (Apr. 24, 2023), was decided by the U.S. Court of Appeals for the Ninth Circuit. Here, the Ninth Circuit ruled that government officials violated the First Amendment by creating publicly accessible social media pages related to their official duties and then blocking certain members of the public from those pages because of the nature of their comments.

The second case, which was decided by the U.S. Court of Appeals for the Sixth Circuit, Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), cert. granted, Lindke v. Freed, No. 22-611 (Apr. 24, 2023), reached the opposite result.

The issue presented to the Court by both cases is whether government officials who block members of the public from their personal social media accounts are engaging in “state action” or private conduct. This is an important distinction because the First Amendment, as incorporated against the states by the Fourteenth Amendment, applies to state action but not to private conduct. Similarly, to state a claim under 42 U.S.C. § 1983, a plaintiff must allege the violation of a federal right committed by a person acting “under color of” state law, a standard that is the equivalent of the “state action” requirement under the Constitution.

With elected officials across the country increasingly relying on social media both to promote their campaigns and, after election, to communicate with constituents and seek their input in carrying out their duties as public officials, the Court’s decision later this term will have important implications for government officials, and for the public at large.

The Ninth Circuit’s Decision

The O’Connor-Ratcliff case arose almost a decade ago when two candidates for positions on the board of trustees of the Poway Unified School District (the District), Michelle O’Connor-Ratcliff and T.J. Zane (together, the Trustees), created public Facebook and Twitter pages to promote their campaigns for office. After they won and assumed office, the two used their public social media pages to inform constituents about goings-on at the District and on the board, to invite the public to board meetings, to solicit input about important board decisions, and to communicate with parents about safety and security issues at the District’s schools, among other things.

In the “About” section of her Facebook page, O’Connor-Ratcliff described herself as a “Government Official,” listed her “Current Office” as president of the District’s board of education, and provided a link to her official District email address. Zane titled his Facebook page “T.J. Zane, Poway Unified School District Trustee,” and described it as “the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information.” Like O’Connor-Ratcliff, Zane described himself as a “Government Official,” and he described his interests as including “being accessible and accountable; retaining quality teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety.”

Two parents of children in the District, Christopher and Kimberly Garnier, frequently left comments critical of the Trustees and the board on the Trustees’ social media pages, sometimes posting the same long criticisms repeatedly. The Trustees deleted or hid the Garniers’ repetitive comments for a time but they eventually blocked the Garniers entirely from their social media pages. The Garniers sued under Section 1983, seeking damages and declaratory and injunctive relief. They asserted that the Trustees violated their First Amendment rights by ejecting them from their social media pages.

After a bench trial, the U.S. District Court for the Southern District of California concluded that the Trustees acted under color of state law for purposes of Section 1983 when they banned the Garniers from their social media pages and agreed with the Garniers that their First Amendment rights had been violated. The dispute reached the Ninth Circuit, which affirmed. The Ninth Circuit concluded that, given the close nexus between the Trustees’ use of their social media pages and their official positions, the Trustees were acting under color of state law when they blocked the Garniers.

The Ninth Circuit had several reasons for reaching this result.

First, the circuit court explained that the Trustees “purport[ed] . . . to act in the performance of [their] official duties” through the use of their social media pages. The circuit court pointed out that the Trustees identified themselves on their Facebook pages as government officials, listed their official titles in prominent places on both their Facebook and Twitter pages, and, in O’Connor-Ratcliff’s case, included her official District email address in the page’s contact information. The circuit court also noted that Zane wrote that his Facebook page was the official page for him as a District board member.

The Ninth Circuit added that, consistent with the Trustees’ official identifications on their social media pages, the content of the Trustees’ pages was “overwhelmingly” geared toward “provid[ing] information to the public about” the board’s “official activities and solicit[ing] input from the public on policy issues” relevant to board decisions.

Second, the Ninth Circuit reasoned that the Trustees’ presentation of their social media pages as official outlets facilitated their performance of their board responsibilities and “had the purpose and effect of influencing the behavior of others.”

Finally, the Ninth Circuit found that the Trustees’ management of their social media pages “related in some meaningful way” to their “governmental status” and “to the performance of [their] duties.” The circuit court noted that the Trustees used their social media pages to communicate about District and board matters. 

Given all these attributes of the Trustees’ social media pages, the Ninth Circuit held that the Trustees’ maintenance of their social media pages, including the decision to block the Garniers from those pages, constituted state action under Section 1983 and that, as state actors, the Trustees violated the First Amendment when they blocked the Garniers.

The Sixth Circuit’s Decision

The Lindke case stemmed from the decision James Freed made in 2014 after he was appointed city manager for Port Huron, Michigan, to update his Facebook page to reflect his new title. In the “About” section of his Facebook page, Freed described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed listed the Port Huron website as his page’s website, the city’s general email for “City Administration and Staff” ([email protected]) as his page’s contact information, and the City Hall address as his page’s address.

Freed was an active Facebook user whose page featured a medley of posts. He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager. When the COVID-19 pandemic hit early in 2020, he posted about that, too, sharing the policies he initiated for Port Huron and news articles on public health measures and statistics.

A citizen, Kevin Lindke, criticized the way Freed was handling the pandemic in the comments section of Freed’s Facebook page. After Freed deleted Lindke’s comments and eventually blocked him, Lindke sued Freed under Section 1983. Lindke argued that Freed violated his First Amendment rights by deleting his comments and blocking him from the page. The U.S. District Court for the Eastern District of Michigan ruled in favor of Freed, and Lindke appealed to the Sixth Circuit, which affirmed.

To determine whether Freed was acting in his official governmental capacity, the Sixth Circuit applied what it referred to as a “state-official test.” The circuit court explained that this test asks whether the official was “performing an actual or apparent duty” of the official’s office, or if the official could not have behaved as the official did “without the authority” of the office. The circuit court said that this test stemmed from the “recognition that public officials aren’t just public officials – they’re individual citizens, too.”

With respect to social media accounts, the Sixth Circuit stated that social media activity may be state action when it (1) is part of an officeholder’s “actual or apparent dut[ies],” or (2) is using the officeholder’s governmental authority. Applying these criteria, the circuit court decided that Freed’s Facebook activity was not state action.

The Sixth Circuit reasoned that no state law, ordinance, or regulation compelled Freed to operate his Facebook page, and it said that there was nothing to suggest that operating the page “was Freed’s official responsibility.” The circuit court also noted that Freed’s page did not belong to the office of city manager but, instead, that Freed created the page “years before taking office, and there’s no indication his successor would take it over.” Moreover, the circuit court added, Freed did not rely on government employees to maintain his Facebook page.

Thus, focusing on Freed’s official duties and the use of government resources or state employees, rather than on “a page’s appearance or purpose,” the Sixth Circuit concluded that Freed was acting in his personal capacity, and that there was no state action.

Conclusion

The Sixth Circuit’s analysis of the “state action” issue conflicts with the standard applied by the Ninth Circuit – and it also conflicts with the test adopted by the U.S. Courts of Appeals for the Second, Fourth, and Eighth Circuits, which are consistent with the Ninth Circuit’s view. See Knight First Amendment Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst., 141 S.Ct. 1220 (2021); Davison v. Randall, 912 F.3d 666 (4th Cir. 2019); Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021). The circuit split has set up a perfect opportunity for the Supreme Court to issue a groundbreaking decision, and oral argument in O’Connor-Ratcliff and Lindke, which the Court has scheduled for October 31, will undoubtedly be quite interesting. Although the competing interests in O’Connor-Ratcliff and Lindke suggest that it is difficult to predict how the Court will rule, one thing is clear: The Court’s decision will further emphasize the importance of social media in today’s world.

Stay tuned.

Reprinted with permission from the New York Law Journal^©, ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.