CHRISTOPHER GARNIER V. MICHELLE O'CONNOR-RATCLIFF, No. 21-55118 (9th Cir. 2022)

Court Description: Civil Rights The panel affirmed the district court’s bench trial judgment in favor of plaintiffs in an action brought pursuant to 42 U.S.C. § 1983 alleging that two members of the Poway Unified School District Board of Trustees violated plaintiffs’ First Amendment rights by ejecting plaintiffs from social media pages that the Trustees had used to communicate with constituents about public issues. The panel noted that plaintiffs’ claims presented 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. The panel held that, under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The panel further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid. The panel concluded that the Trustees violated plaintiffs’ First Amendment rights and that the district court was therefore correct to grant plaintiffs declaratory and injunctive relief. GARNIER V. O’CONNOR-RATCLIFF 3 The panel rejected the Trustees’ assertion that the dispute was moot because after plaintiffs filed their lawsuit, the Trustees began using a word filter on Facebook to prevent any new comments from being posted on their Facebook pages, thereby closing the Facebook pages as public fora. The panel held that: (1) using a word filter on Facebook would not affect plaintiff Christopher Garnier’s claims involving being blocked from Twitter; (2) the word filter limit did not change Facebook’s non-verbal “reaction” feature; and (3) the Trustees failed to carry their burden of showing they would not, in the future, remove the word filters from their Facebook pages and again open those pages up for verbal comments from the public. The panel next rejected the Trustees’ assertion that creating, maintaining, and blocking plaintiffs from their social media accounts did not constitute state action under § 1983. Both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public about the work of the Poway Unified School District Board. Given the close nexus between the Trustees’ use of their social media pages and their official positions, the Trustees in this case were acting under color of state law when they blocked plaintiffs. The panel rejected the Trustees’ assertion that blocking plaintiffs was a narrowly tailored time, place, or manner restriction. Even if plaintiffs’ comments did interfere with the Trustees’ interests in facilitating discussion or avoiding disruption on their social media pages, the Trustees’ decision to block plaintiffs burdened substantially more speech than was necessary and therefore was not narrowly tailored. Addressing plaintiffs’ cross appeal, the panel held that the district court correctly concluded that at the time the 4 GARNIER V. O’CONNOR-RATCLIFF Trustees blocked plaintiffs, it was not clearly established that plaintiffs had a First Amendment right to post comments on a public official’s Facebook or Twitter page. The district court therefore did not err by granting qualified immunity to the Trustees as to plaintiffs’ damages claim. Finally, the panel determined that it lacked jurisdiction to consider whether the district court erred by denying, without prejudice, defendants’ motion to retax costs.