Amicus Brief: O’Connor-Ratcliff v. Garnier
In the coming term, the U.S. Supreme Court is taking up the interesting question of whether a public official who blocks someone from the official’s personal social-media account violates the First Amendment when he uses that account to communicate about job-related matters with the public.
The case arose when two school board trustees blocked two parents from their Facebook and Twitter accounts. The trustees created public Facebook pages, separate from their private accounts, and used them to promote their election campaigns in 2014. They continued to use the accounts after being elected to post district business. One of them also created a Twitter account in 2016 to promote her activities as a trustee. Parents of kids attending schools in the district who were vocal critics of the board began posting on the trustees’ social media pages in 2015 and often posted repetitive/vexatious comments. In 2017, the trustees decided to block both parents. The parents sued the trustees for violating their right to free speech.
The district court ruled for the trustees for damages based on qualified immunity, but allowed the rest of the case to proceed. The court held that the trustees acted under color of state law, that the comments section of the social media pages were designated public forums, and that it would hold a bench trial to determine whether blocking the parents was a valid content-neutral speech restriction. The Ninth Circuit affirmed but took a more expansive view of the First Amendment’s protections, assessing state action under the “nexus test,” which applies “when there is such a close nexus between the State and the challenged action that the seemingly private behavior may be fairly treated as that of the state itself.” This tracks with decisions from the Second, Fourth, and Eighth Circuits, but conflicts with a recent Sixth Circuit ruling that government officials who act of their own volition on social media, rather than as part of their official duties (as directed by superiors, for example), may not be state actors.
The Manhattan Institute filed a brief that proposes a test whereby posts on personal accounts be assessed on a post-by-post basis and, if there is government-related speech, standard forum analysis should apply. That is, an official who generally allows any person to comment on a post to his account may create a “designated public forum,” while one who restricts comments to certain posts or topics may create a “limited public forum”—both of which implicate certain First Amendment protections. And, regardless of the forum type, there should be a baseline protection against unbridled discretion or other types of viewpoint discrimination, including banning or muting citizens just because they criticize the official or express an unwanted viewpoint.