Garnier v. O'Connor-Ratcliff

Citation41 F.4th 1158
Decision Date27 July 2022
Docket Numbers. 21-55118,21-55157
Parties Christopher GARNIER; Kimberly Garnier, Plaintiffs-Appellees/Cross-Appellants, v. Michelle O'CONNOR-RATCLIFF; T.J. Zane, Defendants-Appellants/Cross-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

41 F.4th 1158

Christopher GARNIER; Kimberly Garnier, Plaintiffs-Appellees/Cross-Appellants,
Michelle O'CONNOR-RATCLIFF; T.J. Zane, Defendants-Appellants/Cross-Appellees.

Nos. 21-55118

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2022 Pasadena, California
Filed July 27, 2022

Jack M. Sleeth Jr. (argued) and Paul V. Carelli, IV, Artiano Shinoff, San Diego, California, for Defendants-Appellants/Cross-Appellees.

Cory J. Briggs (argued), Briggs Law Corporation, Upland, California, for Plaintiffs-Appellees/Cross-Appellants.

Before: Marsha S. Berzon, Richard C. Tallman, and Michelle T. Friedland, Circuit Judges.

BERZON, Circuit Judge:

Today, social media websites like Facebook and Twitter are, for many, "the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge." Packingham v. North Carolina , ––– U.S. ––––, 137 S. Ct. 1730, 1737, 198 L.Ed.2d 273 (2017). Accordingly, social media sites "can provide perhaps the most powerful mechanisms

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available to a private citizen to make his or her voice heard." Id.

Unsurprisingly, social media's capacity for facilitating communication and stirring public debate has not been lost on public officials. From local county supervisors and state representatives to the President of the United States, elected officials across the country increasingly rely 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.

This case concerns a dispute arising from two public officials' use of social media to communicate with constituents about public issues. Beginning around 2014, two members of the Poway Unified School District ("PUSD" or the "District") Board of Trustees, 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 School District and on the PUSD 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.

But public engagement with their social media pages was not all


s and


s. Two parents of children in the School District, Christopher and Kimberly Garnier, frequently left comments critical of the Trustees and the Board on the Trustees' pages, sometimes posting the same long criticisms repeatedly. After deleting or hiding the Garniers' repetitive comments for a time, the Trustees eventually blocked the Garniers entirely from their social media pages. The Garniers sued, asserting that the Trustees violated their First Amendment rights by ejecting them from the social media pages. After a bench trial, the district court agreed with the Garniers that their First Amendment rights had been violated. Both parties appeal.

The Garniers' claims present an issue of first impression in this Circuit: whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments. For the following reasons, we hold that, under the circumstances presented here, the Trustees have acted under color of state law by using their social media pages as public fora in carrying out their official duties. We further hold that, applying First Amendment public forum criteria, the restrictions imposed on the Garniers' expression are not appropriately tailored to serve a significant governmental interest and so are invalid. We therefore affirm the district court judgment.


A. Facts

Michelle O'Connor-Ratcliff and T.J. Zane successfully ran for election to the PUSD Board of Trustees in November 2014, positions they still hold. In addition to their private Facebook pages, which they shared only with family and friends, O'Connor-Ratcliff and Zane created public Facebook pages to promote their political campaigns. In 2016, O'Connor-Ratcliff also created a public Twitter page related to her activities as a PUSD trustee.1

Only the Trustees could create original "posts" on their public Facebook pages. Members of the public who chose to like or follow the public pages were able to post "comments" beneath the Trustees' posts.

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Viewers could also register non-verbal emoticon "reactions" to posts, such as a "thumbs-up" reaction to "like" the post, a heart, or an angry face. Facebook automatically truncates lengthy comments that a Facebook user makes on another user's posts. Viewers of the post on which the comment was made must click a "See More" button on the comment to read more than the first few lines of a comment's text. Accordingly, viewers of the Trustees' Facebook pages could easily scroll past the truncated version of long comments they did not wish to read. Unlike on Facebook, when viewing another person's Twitter profile, comments left by other Twitter users on the account owner's posts—called "replies," rather than comments—are not immediately visible. To see those replies, viewers must click on the specific Tweet and then scroll down to see individual replies.

Both Facebook and Twitter provide the Trustees with some ability to moderate the content of comments on their pages. Although the Trustees cannot turn off comments on either platform, they can "delete" or "hide" individual comments, thereby removing them entirely or making them visible only to the Trustee and the person who posted the comment.2 Additionally, the Trustees can limit verbal comments by using Facebook's "word filter" function, which allows a page owner to create a list of words that, if used in a comment, will prevent the comment from appearing beneath the page owner's post.

The Trustees can also "block" Facebook and Twitter users. Blocking a Facebook user prevents that user from commenting on or registering a non-verbal reaction to the posts on the blocker's page, but the user is still able to continue viewing the public Facebook page. In contrast, on Twitter, once a user has been "blocked," the individual can neither interact with nor view the blocker's Twitter feed.

Although before assuming office, the Trustees originally used their social media pages to promote their campaigns, they continued to use those pages to post content related to PUSD business and the activities of the Board after winning their elections. In the "About" section of her public Facebook page, O'Connor-Ratcliff described herself as a "Government Official," listed her "Current Office" as President of the PUSD Board of Education, and provided a link to her PUSD official email address. Zane titled his Facebook page "T.J. Zane, Poway Unified School District Trustee," and in the "About" section, he described his Facebook 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."

Some of the Trustees' posts described visits to PUSD's schools and promoted the achievements of the District's students and teachers. In other posts, O'Connor-Ratcliff and Zane reported on PUSD Board-related business. For instance, on several occasions, O'Connor-Ratcliff posted announcements

41 F.4th 1165

soliciting students and community members to apply for representative positions with the PUSD Board, including the PUSD Student Board of Education, the Budget Review Advisory Committee, and the Educational Technology Advisory Committee. The Trustees also posted information about PUSD's Local Control Accountability Plan ("LCAP")—a three-year budgetary plan required by California law "that describes the goals, actions, services, and expenditures to support positive student outcomes that address state and local priorities."3 See Cal. Educ. Code § 52060. In those posts, the Trustees invited the public to fill out surveys related to the LCAP formulation process, shared information about in-person community fora related to LCAP planning, and reported on the plans ultimately adopted by the Board.

Additionally, the Trustees posted about the PUSD Board's superintendent hiring and firing decisions, including announcing the Board's decision to terminate then-Superintendent John Collins, inviting members of the public to fill out online surveys and attend community fora regarding the selection of a new superintendent, and providing updates regarding superintendent applicants and the ultimate hiring decision. The Trustees also posted reminders to the public about upcoming PUSD Board meetings and regularly shared their own recaps of important issues discussed at Board meetings, such as bond issuance decisions, employee contract negotiations, and priorities for the upcoming school year.

Occasionally, the Trustees also used their social media pages to alert the public about safety and security issues at PUSD. For instance, Zane posted about lockdowns following threats to students, an active shooter incident near one PUSD school, and an ongoing brush fire that forced the evacuation of another PUSD school.

Neither O'Connor-Ratcliff nor Zane established any rules of etiquette or decorum regulating how the public was to interact with their social media accounts. There were, for example, no size or subject limits set for comments. The Trustees both occasionally solicited feedback from constituents through their...

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