The First Amendment Prohibits Censoring Speech on Official Social Media Accounts
Friday, Aug. 5, 2022
By Langenkamp, Curtis, Price, Lindstrom & Chevedden, LLP
Can a public official block someone from an official social media account for posting critical comments? As public officials increasingly use social media as their primary form for communication, we are increasingly asked this question. Our answer: no. A decision last week by the Ninth Circuit Court of Appeals reaffirms our advice.
In Garnier v. O’Conner-Ratcliff, the Ninth Circuit found two California school board members violated the First Amendment by blocking constituents from their official social media accounts. The case involved two members of the Poway Unified School District Board of Trustees who maintained Twitter and Facebook pages. Although the trustees initially created the pages in their campaigns for office, they continued using the accounts after they were elected, retitled the pages using their official titles, and used the pages to share information about issues in the school district and solicit input.
Two parents frequently wrote critical comments on the trustees’ pages, sometimes obnoxiously. At one point, one of the parents, within approximately ten minutes, posted 226 identical comments on each post one trustee had ever written. Although repetitive and unrelenting, the parents’ comments primarily related to school business. The trustees at first deleted or hid the parents’ comments, but eventually blocked them altogether. So the parents sued, claiming their exclusion from the trustees’ pages violated the First Amendment, and they won.
Public officials cannot censor speech in public places. The Ninth Circuit agreed that in this case the trustees acted as public officials, not private individuals, by describing their Twitter and Facebook pages as official accounts and using the pages in furtherance of their official duties. The pages amounted to public forums because the trustees opened them to public comment. And permanently banning the critical parents amounted to censorship. The court dismissed the trustees’ purported concern that the parents’ posts were disruptive, noting that users could “with the flick of a finger, simply scroll past the repetitive or irrelevant comments.”
Numerous other courts have held the same thing. In 2020, a federal court found that Sacramento Sheriff Scott Jones violated the First Amendment by blocking Black Lives Matters activists from his official Facebook page.
Langenkamp, Curtis, Price, Lindstrom & Chevedden has successfully represented plaintiffs blocked on social media by public officials and we welcome inquiries on this issue.