Garnier v. O'Connor-Ratcliff. (social media page access control)

• Date: 01 May 2024
• Author: Nambiar, Vaishali

41 F.4TH 1158 (9TH CIR. 2022)

In Garnier v. O'Connor-Ratcliff, the Ninth Circuit addressed the question of whether two school board members violated their constituents' First Amendment rights by blocking them from their social media pages. (1) The Ninth Circuit rejected all of the Board members' arguments on appeal and ultimately affirmed the district court's decision, holding that blocking the constituents did, in fact, violate the First Amendment. (2) This case was argued before the U.S. Supreme Court on October 31, 2023, and on March 15, 2024, the Supreme Court published a per curiam order vacating and remanding the case back to the Ninth Circuit. (3)

I. BACKGROUND

In November 2014, Michelle O'Connor-Ratcliff and T.J. Zane (Trustees) created public social media pages to promote their campaigns for positions on the Poway Unified School District (PUSD) Board of Trustees. (4) They each created a Facebook page, and O'Connor-Ratcliff would later also go on to create a Twitter page in 2016. (5) After winning seats on the Board, the Trustees continued to operate their public pages for various purposes related to their position as Board members. (6) The public was able to engage with the Trustee's posts and pages through emoticon reactions and comments. (7) Christopher and Kimberly Garnier were two parents of children in the District, and in 2015, the Garniers began to repeatedly post lengthy comments on the Trustees' social media posts critiquing the PUSD Board. (8) The Trustees began deleting and hiding the Garniers' comments and, eventually, went on to block the Garniers entirely in October 2017. (9) Subsequently, the Trustees also began using a "word filter" feature to filter out any comments on their page that included specific words. (10) Since the Trustees added several commonly used English words to their filtration system, this effectively eliminated all comments on their public pages. (11)

Shortly after being blocked, the Garniers filed suit under [section] 1983 seeking damages, declaratory relief, and injunctive relief, claiming the Trustees violated their First Amendment rights by removing them from the social media pages--which constituted public fora. (12) The district court found that the Trustees acted under color of state law in blocking the Garniers, and the social media pages were designated public fora, so a trial was required to determine disputed factual issues about whether the blocking was a content-neutral restriction of the repetitive comments. (13) After a two-day bench trial, the district court granted judgment for the Garniers, finding that the Trustees' indefinite blocking of the Garniers was not a narrowly tailored restriction and taxed costs in favor of the Garniers. (14) The Trustees appealed, challenging the judgment and the decision to award costs, and the Garniers cross-appealed, asserting the district court erred by granting qualified immunity to the Trustees for the damages claims. (15)

II. ANALYSIS

A. Trustees' Arguments

The Trustees put forward four arguments on appeal. First, the Trustees contended that the case was moot because the implementation of word filters effectively blocked comments from all users, and therefore this closed any public fora that may have previously existed. (16) Next, they maintained that blocking the Garniers did not constitute state action under [section] 1983. (17) Third, they argued that the decision to block the Garniers constituted a narrowly tailored time, place, and manner restriction. (18) Finally, the Trustees asserted that the district court erred by denying, without prejudice, their motion to retax costs. (19) The court rejected each of these arguments and framed their analysis accordingly.

1. Mootness

The court rejected the Trustees' argument that their use of the word filter feature deemed this case moot on three grounds. (20) First, the court pointed to the fact that the word filter feature was only utilized on the Trustees' Facebook page--so Christopher Garnier's claim against O'Connor-Ratcliff's Twitter page would still survive. (21) Next, the court identified that the word filter feature only implicated a user's ability to comment, not their ability to register emoticon reactions (e.g., likes, hearts). (22) As a result, a live controversy still existed because the Garniers were deprived of providing nonverbal feedback other users were capable of providing. (23) Finally, and "independently dispositive," was the fact that the Trustees voluntarily made use of the world filtering system. (24) The court noted that a defendant's voluntary cessation of an activity does not moot a case unless the defendant can meet the heavy burden of showing they would not revert to their prior behavior. (25) Ultimately, the court concluded that the Trustees had not adequately proven they would continue using the word filter and close off all verbal comments from the general public - so this case was not moot. (26)

2. State Action

To determine whether the Trustees were acting under the color of state law, the court applied the "nexus test," which looks for whether there is 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." (27) The court analogized the facts of this case to other state action cases involving off-duty state officers and concluded that since the nexus test was applied in those instances, it would also be appropriate in this context. (28)

To guide its application of the nexus test, the court utilized a set of factors discussed in a previous case, Naffe v. Frey. (29) The first Naffe factor is whether "the employee purports to act under the color of law." (30) Here, the court found that the Trustees satisfied this factor by prominently displaying themselves as government officials on their social media pages and primarily posting content about official Board activities to engage with the public. (31) The second factor is whether the defendant's actions in the performance of their duties "had the purpose and effect of influencing the behavior of others." (32) On this point, the court determined that the Trustees' behavior had the purpose...