In 2017, Poway Unified School District (PUSD) Board Trustee Michelle O’Connor-Ratcliff’s was left 226 identical replies on her Twitter page. On her Facebook, another comment was left on 42 separate posts. 

The comments were left by Christopher and Kimberly Garnier, the parents of three students in the PUSD, who wanted to ensure that others read their comments on incidents of racism in PUSD. Initially, O’Connor-Ratcliff deleted or hid the Garniers’ comments. Eventually, she blocked them from both her Facebook and Twitter page. School board trustee T.J. Zane also blocked the Garniers from his Facebook page. 

The Garniers filed a suit against O’Connor-Ratcliff and Zane for violating their First Amendment rights by blocking them on the social media pages, which they argued were public fora.

Both the district court and the Ninth Circuit Court of Appeals found a First Amendment violation, arguing that the board members were acting as public officials when blocking the Garniers, “willfully depriv[ing] a person of a right or privilege protected by the Constitution or laws of the United States.”

The petitioners, O’Connor-Ratcliff and Zane, appealed; the Supreme Court granted  their petition, April 24. 

But cases regarding public officials blocking others—particularly critiques—are far from rare. Alongside the Ninth Circuit, the Sixth Circuit recently ruled on a similar case, Lindke v. Freed. In that case, Port Huron city manager, James Freed, blocked citizen Kevin Lindke on Facebook after he criticized his handling of the COVID-19 pandemic. The Supreme Court accepted the appeal for Lindke as well, likely an indication that the two cases will be consolidated. 

The crux of this case revolves around state action, or actions either directly taken by or involving the government. Whether or not their social media accounts were classified as public fora or personal social media accounts will likely be a determinative fact. 

The Ninth Circuit used an ‘appearance-and-purpose’ inquiry, examining whether a social media page has an official appearance and the purpose of informing the public about official business. Comparatively, the Sixth Circuit uses an ‘authority-or-duty’ test, where in order to qualify as state action, the public official must either perform one of their office’s duties or behave in a manner that would be impossible “without the authority of his office.” One example of that would be posting safety and security updates that could only be known because of the government official’s position. 

Despite all circuits’ fact-based review, O’Connor-Ratcliff’s argument is that there is a 4-1 circuit split on what qualifies as state action, with the Second, Fourth, Eighth and Ninth Circuits on one side and the Sixth on the other. They argue that the decision in Lindke conflicts with the decision in Ratcliff, which is also their primary justification for an appeal to the Supreme Court. 

As the Garniers’ brief states, “The Sixth Circuit would agree with the Ninth Circuit that the Trustees here were acting [as public officials]…either duty or authority is sufficient [to prove that]. Here, we have both.” In accordance with the California Education Code and PUSD Board Policy 9000(a), which holds that board members must “ensure the district is responsive” and “involve the community,” O’Connor-Ratcliff and Zane were allegedly fulfilling their obligations as school board members through social media. Their accounts also had the label ‘government official,’ included official PUSD contact information, and utilized posts to inform and request feedback from constituents. 

The Supreme Court, in the 2017 case of Packingham v. North Carolina has found that social media platforms are similar to a “modern public square.” But O’Connor-Ratcliff and Zane consistently argue that the accounts were personal: it is an undisputed fact that the accounts were created without any explicit funding, support, or involvement by PUSD. 

As was brought up, O’Connor-Ratcliff’s account could have been used as a way to promote her re-election, a task completely independent of the government’s authorization. The circumstances were analogized to an official speaking about an issue at their private property, where one would not be required to allow every single member of the public to attend. 

Drawing the line between public duties and personal ones, particularly on social media where usage can encompass a broad variety of purposes and reach the thousands of people a government official represents, will be critical for the future of political participation in our democracy. Nearly 20% of all registered voters follow elected officials on social networking sites—platforms which have become increasingly utilized as a way for public officials to interact with those they represent. 

It’s imperative to protect First Amendment rights, allowing constituents to freely voice their concerns without fear of consequence. Although O’Connor-Ratcliff and Zane argue that the Ninth Circuit’s ruling will have the “unintended consequence of creating less speech if social-media pages of public officials are overrun with harassment, trolling, and hate speech,” filtering and deleting comments still remains a viable, constitutional alternative. But it’s also imperative to protect public officials from harassment and abusive comments. It’s imperative to protect the liberties of public officials when they’re not carrying out a governmental duty. And qualifying a social media account with no direct relation to the district as state action may end up allowing the district, or any government entity, to begin controlling what officials can publish on their social media accounts in the first place. 

The Supreme Court’s ruling in both this case and Lindke will likely define the role of free speech and social media in politics for years to come.