School Board Members Blocking of Parents on Social Media Violated First Amendment
We have reported in the past about the potential implication of the First Amendment when public officials engage on social media. Not all conduct or activities by public officials will trigger First Amendment protections and rights, but when a public official creates a public forum on social media and then takes action that censors protected speech, courts have held that this action violates the First Amendment. Recently, the Ninth Circuit Court of Appeals addressed this issue in a First Amendment challenge involving two school board members, finding the two officials had violated the First Amendment rights of individuals who they censored on their social media sites. Garnier v. Ratcliff, 9th Cir. July 27, 2022
The two school members had initially set up social media sites for their campaigns. After they took office, they used those same social media pages to engage with citizens about school board matters. On their pages, they informed citizens about upcoming school board meetings, solicited input about board decisions, and communicated with parents about school safety and other pending issues. Two parents who frequently posted critical comments on the school officials' pages, had their posts deleted by the school board members. Eventually, both school officials blocked the parents from their pages. Shortly after the parents were blocked, the school officials set up a word "filtering" setting on their pages that blocked a number of commonly used words that, in effect, eliminated any comments from their pages.
The parents sued, claiming that the deletion of their critical comments and blocking from the school officials' pages violated their First Amendment rights. The school officials first argued that their social media pages were not a public forum, so they were not acting as "state actors" for purposes of a civil right action. They further argued that even the pages were a public forum, their blocking of the parents was a reasonable time, place, and manner restriction. Finally, they argued that by establishing a word filtering setting that blocked all comments they had effectively "closed" the public forum, so the lawsuit was moot.
First, the court rejected the school officials' argument that the case was moot, finding that the closing of a public forum does not "cure" a previous First Amendment violation.
Second, the court found that the two officials were acting as "state actors" when they were engaging on their social media pages. Nearly all of their activities on their pages related to their school official duties, they identified themselves as school officials, engaged with constituents about school board business, and regularly posted about school board business. The court acknowledged that other circuit courts of appeals had similarly found activities and conduct similar to these two officials to have created a public forum that would trigger First Amendment protections, including cases involving a Facebook page set up by the Loudoun County commissioner, former President Trump's Twitter account. Here, the court determined that the officials' had created a designated public forum on their social media sites and their activities in deleting critical comments and blocking critical commenters violated the First Amendment because it did not serve a significant government interest and was not narrowly tailored.
This case is definitely worth a read for government officials who engage in social media activities related to their government duties because it provides a detailed analysis of when a personal social media page and activities can convert into government action triggering the First Amendment.
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