Federal Appellate Court Finds that School Board President Violated First Amendment in Restricting Followers on Social Media

The U.S. Court of Appeals for the Ninth Circuit, which governs federal districts in the West/Northwest, recently held that a California school board member violated the First Amendment when blocking users’ ability to access her personal social media page, applying the new standard recently established by the Supreme Court regarding social media usage and government actors.

In Garnier v. O’Connor-Ratcliff, the issue was whether a school board president (O’Connor-Ratcliff) violated the First Amendment when she deleted dissenting comments on her personal social media accounts and later blocked individuals from interacting with the accounts altogether. The case initially made its way to the U.S. Supreme Court where the Court adopted a new test to determine whether a government official’s activity involving social media may implicate protections under the First Amendment. Under this test, a government official may be liable under the First Amendment for activities involving personal social media accounts if two conditions are met. First, the government official must have authority to speak on behalf of the government. Second, the government official must exercise this authority. After establishing this two-part test, the Supreme Court sent the case back to the lower court to apply the test and determine whether the school board members’ actions violated the First Amendment.

The plaintiffs in the case are parents in the school district. When the school board president campaigned for election to the board in 2014, she maintained personal social media accounts on Twitter and Facebook, which she used to post information related to the upcoming election and school board meetings. In 2015, after O’Connor-Ratcliff was elected to be president of the school board, the plaintiff parents began posting on these platforms and expressed dissatisfaction with the school district’s leadership. In response, the board president deleted the parents’ comments and eventually blocked the parents from both the Facebook page and Twitter account.

Applying the two-part test recently established by the Supreme Court, the Ninth Circuit considered whether the board president had authority to speak on behalf of the school district, while serving as the board president. The Court examined the board’s bylaws (policies) which designate the board president as spokesperson on behalf of the board. The Court further found that the bylaws authorize communications on behalf of the board, including through electronic means. Therefore, the Court found that the board president, because of her position as spokesperson, possessed actual authority to speak on behalf of the school board through social media platforms such that the first prong of the analysis was met.

The Court next considered whether the board president used the social media in furtherance of her official responsibilities. The Court reasoned that the social media accounts had hallmarks of official board communications because the board president identified herself as a board member for the school district and provided her school district email addresses as contact information. Further, the account included no disclaimer that the views presented represented personal opinions. The Court lastly reasoned that the content of the social media accounts itself confirmed the official nature as the Facebook and Twitter posts were almost exclusively dedicated to school and board activities. Though owned and operated personally by the school board president, the Appellate Court held that the public Twitter and Facebook accounts were functionally extensions of the school district and thus a public forum. When the school board president hid and ultimately blocked the plaintiffs for having critical views, the parents’ First Amendment rights were violated.

Though issued by the Ninth Circuit, this decision applies a U.S. Supreme Court standard that is applicable across the country and should give representatives of public bodies everywhere pause when utilizing social media. Notably, many school districts in Illinois authorize their school board presidents to act as public spokespersons for the school district. Other individuals with authority to speak on behalf of the public body, including communications professionals and superintendents, should understand the impact of this case on their personal social media accounts as well and consider the use of disclaimers or other qualifiers to distinguish their personal speech from their official speech.

If you have any questions regarding this ruling or its implications, please reach out to a Franczek attorney.