Michelle O’Connor-Ratcliff and T.J. Zane (Trustees) were members of the Poway Unified School District (PUSD) Board of Trustees. In November 2014, while running for election to the PUSD, the Trustees created public Facebook pages to promote their campaigns. After winning, the Trustees used their pages to state they were government officials. They continued to use their pages to post content related to PUSD business. O’Connor-Ratcliff also created a Twitter page related to her official duties. On those pages, the Trustees informed constituents about PUSD activities and Board actions, invited the public to attend Board meetings, and solicited input about Board decisions.
Starting in 2015, Christopher and Kimberly Garnier, whose children attended school in the PUSD, frequently posted comments critical of the Trustees and the Board. Between 2015 and 2017, the Trustees responded by hiding or deleting the Garnier’s comments. In 2017, the Trustees blocked the Garniers.
The Garniers sued under 42 U.S.C. section 1983 for First Amendment violations. They alleged that the Trustees’ social media pages constituted public fora and that, by blocking them, the Trustees violated their First Amendment rights.
The U.S. District Court granted the Trustees qualified immunity defense to the damages claims. After a bench trial, the District Court found in favor of the Garniers on their section 1983 claim and ordered the Trustees to unblock the Garniers from their Facebook and Twitter pages. The Trustees appealed to the U.S. Court of Appeals for the Ninth Circuit.
Trustee Zane thereafter left the Board, mooting the case as to him. The Ninth Circuit applied the USSC’s test in Lindke v. Freed, 601 U.S. 187 (2024), for determining whether a public official’s social media activity constitutes state action for purposes section 1983.
Lindke held that a public official’s social-media activity constitutes state action under section 1983 only if the official: 1) possessed actual authority to speak on the State’s behalf; and 2) purported to exercise that authority when speaking on social media. Applying this test, the Ninth Circuit held that O’Connor-Ratcliff acted under color of state law as to the Garniers.
As to the first part of the test, the Ninth Circuit looked to the following sources to determine whether a public official possessed authority to speak on behalf of the State: statutes; ordinances; regulations; customs; or usage. The first part of the Linke analysis was met because both California law and the PUSD Board of Education bylaws established that a trustee has the authority to speak on the PUSD’s behalf.
O’Connor-Ratcliff argued that the first test was not met because she used her individual social media account, and not an authorized PUSD account. The Ninth Circuit did not bite. The Court said that the first part of the Lindke test focuses on the authority of the individual official, not the official character of the social media account. As a result, O’Connor-Ratcliff’s use of her authority to speak on behalf of the District can constitute state action even on social media pages that are not “official district social media platforms” as defined by PUSD.
As to the second part of the Lindke test, the Ninth Circuit found that the appearance and function of O’Connor-Ratcliff’s social media pages confirmed that she was using her authority to speak on behalf of the PUSD. In this part of the test, the court asks: is the social media account personal, official, or mixed-use? The Ninth Circuit found that the appearance and content of O’Connor-Ratcliff’s Facebook and Twitter accounts most closely resembled “official” accounts. She identified herself on both pages as the president of the PUSD Board of Education and as a “Government Official,” and provided her official PUSD email address as a means of contact. Also, her posts were overwhelmingly geared toward providing information to the public about the PUSD Board’s official activities and soliciting input from the public on policy issues relevant to Board decisions. She maintained a separate, private Facebook account for engaging with her family and friends in her personal capacity.
The Court found that O’Connor-Ratcliff’s conduct toward the Garniers on her social media accounts constituted state action in violation of the First Amendment under Lindke, and affirmed the judgment of the District Court as to O’Connor-Ratcliff.
Christopher Garnier v. Michelle O’Connor-Ratcliff, 2025 US App. LEXIS 11625 (9th Cir.).
Note: The Ninth Circuit advised that public officials can limit the risk of liability on social media by: keeping personal posts in a clearly designated personal account: including a disclaimer: or refraining from labelling their personal pages as official means of communication.