A recent 9th Circuit decision has important implications for how elected officials utilize social media. In Garnier v. O’Connor-Ratcliff, two candidates running for trustee positions on a local school board created public Facebook and Twitter pages to promote their election campaigns. Both candidates won their respective seats and continued to utilize their public social media accounts as elected officials to share district-related information and engage with community members. The social media accounts were named with their official titles on the school board. Both officials would frequently post updates regarding upcoming Board meetings, activities at schools within the district, Board actions, and would often seek feedback from the public utilizing these social media accounts.

The Plaintiffs had children who attended the school district in which the officials were elected to serve. Both Plaintiffs would frequently post comments on the officials’ social media posts, many of which were critical of the Trustees and the Board. Many of the Plaintiffs’ comments would be posted repeatedly. The officials responded by deleting or hiding the Plaintiffs’ comments. Eventually, both officials blocked Plaintiffs from their social media pages. Plaintiffs filed a 42 U.S.C § 1983 action against the officials and the School District, alleging that their First Amendment rights were violated by being blocked from the officials’ social media pages.

In 2022, the 9th Circuit Court of Appeals ruled in favor of the Plaintiffs, affirming the district court’s decision that the officials’ actions constituted state action under § 1983. In support of its decision, the 9th Circuit determined that the officials utilized their social media accounts as public forums related to their official duties. As such, their actions were subject to First Amendment scrutiny. Further, blocking the Plaintiffs was content-neutral, and while the officials’ initial decision to block the Plaintiffs was narrowly tailored to the goal of avoiding repetitive critical comments, indefinitely blocking them was not.

The elected officials appealed the case to the Supreme Court, which had recently decided Lindke v. Freed, 601 U.S. 187 (2024), establishing a new two-part test for determining whether a public official’s social media activity constitutes state action. Lindke’s two-part test assesses whether the official (1) possessed actual authority to speak on the State’s behalf; and (2) purported to exercise that authority when he or she spoke on social media. 601 U.S. at 198. Importantly, conducting state business on a personal page will not protect a public official from First Amendment constraints.

Pursuant to Lindke, the Supreme Court remanded the Garnier case back to the 9th Circuit. The 9th Circuit held that one official (the school board president) possessed actual authority to speak on the school district’s behalf both through California state law and the school district’s bylaws, which encouraged utilizing electronic communications for school business. As the other official was no longer serving as a trustee, the Court only needed to consider the actions of the school board president. Further, the 9th Circuit held that the board president was acting within her official authority on her social media accounts when she regularly communicated about district business, without including a disclaimer that her views were personal rather than official. Therefore, the actions of the board president constituted “state action” pursuant to the civil rights statute. As such, the First Amendment limited the school board president’s abilities to delete comments or block users if doing so would violate another’s free speech rights. The Court further acknowledged that elected officials can limit the potential for liability by making personal posts from a clearly designated personal account, including a disclaimer, or by abstaining from labeling their personal pages as an outlet for official communication.

For any questions related to this article, please contact Megan Olson at molson@tresslerllp.com.

About the Author

Megan focuses her practice on serving cities, villages, townships, library districts, road districts, park districts, and other local government entities. In addition to providing general counsel, she provides guidance on establishing and drafting new ordinances and policies, contract negotiations, building and code enforcement, administrative proceedings, Freedom of Information Act compliance, and intergovernmental agreements. Megan also has experience in eminent domain, land use, development, and public water supply matters. Click here to read Megan’s full attorney bio.