Earlier this year, the Supreme Court granted certiorari in O’Connor-Ratcliff v. Garnier, a case that will determine whether public officials can block critics from their personal social media accounts without violating the First Amendment. The case arises from a dispute between California parents and members of their local school board and has broad implications for social media use by public servants.

This case comes against a backdrop of increasing litigation over whether public officials’ social media accounts constitute public forums. Over the last decade, courts have issued conflicting rulings on the matter as constituents increasingly use these platforms to engage with their elected representatives. 

In 2017, Christopher and Kimberly Garnier sued two members of the Poway Unified School District Board of Trustees, Michelle O’Connor-Ratcliff and T.J. Zane, for blocking them on Facebook and Twitter. The Garniers frequently posted comments critical of the board’s policies, ranging from fiscal management complaints to objections over curriculum choices, on the Trustees’ social media pages. The Trustees soon decided to take action on the situation. 

“Turning to social media, the Garniers posted hundreds of repetitive comments on O’Connor-Ratcliff’s and Zane’s Facebook and Twitter pages voicing their concerns. O’Connor-Ratcliff and Zane eventually blocked the Garniers for spamming their accounts.” (Golde, 2022)

The Trustees had originally created their social media accounts independently for campaign purposes but continued using them extensively after taking office, frequently posting updates about school board business, district news, and campus events under their official titles as Board Members. The Garniers argued that by completely blocking them from accessing the accounts, O’Connor-Ratcliff and Zane violated their First Amendment rights because the social media platforms constituted public forums.

The district court analyzed the interactions between the accounts and ruled in favor of the Garniers granting declaratory and injunctive relief, ordering the Trustees to unblock the parents. However, the court found that O’Connor-Ratcliff and Zane had qualified immunity, a legal doctrine that shields government officials, including law enforcement officers, from being held personally liable for actions performed in the course of their duties unless their actions violate clearly established constitutional rights from any damages claims. The Ninth Circuit affirmed the lower court’s decision highlighting the Trustees’ use of their titles and channels to conduct official board business.

This ruling created a circuit split with the Fifth Circuit’s 2018 decision in Hargis v. Bevin, which held that a public official’s personal social media account was not a public forum subject to First Amendment constraints. In Hargis, the Fifth Circuit emphasized the personal nature of the Kentucky Governor’s social media accounts. O’Connor-Ratcliff marks the first time the Supreme Court has agreed to resolve this divide between the circuits.

In their briefs, O’Connor-Ratcliff and Zane argue that their Facebook and Twitter accounts are personal platforms, distinct from any official government accounts. They contend that a public official’s choice to sometimes communicate with constituents about work matters on these private channels does not automatically transform the social media platforms themselves into public forums subject to First Amendment constraints.

The Trustees assert that establishing such a precedent would have a chilling effect, discouraging public servants from engaging constructively online out of fear of endless harassment from critics flooding their accounts. Several amici, including the federal government, have weighed in supporting the Trustees’ position. They assert that treating personal social media accounts as public forums simply because officials opt to discuss some work matters would be an overreach, infringing on public servants’ own private speech rights.

However, the American Civil Liberties Union argues in their amicus brief that when public officials actively use personal platforms to conduct official business and interact with the public, they cannot selectively exclude critics or block users from those accounts without raising First Amendment concerns.

How the Supreme Court ultimately resolves this case will likely substantially impact social media use by public officials at every level of government nationwide. A ruling in favor of the Trustees could allow more selective blocking or harassing of repetitive critics from officials’ personal accounts. However, a victory for the Garniers may prompt more officials to scale back their social media presence or maintain strict segregation between personal and official accounts to avoid potential First Amendment claims.

The case encapsulates the difficulties in adapting constitutional principles to ever-evolving technology and norms around digital speech. The Supreme Court will hear oral arguments in O’Connor-Ratcliff v. Garnier on Oct. 31, 2023. A final decision in the case is expected by June 2024, likely setting an important precedent regarding the intersection of social media and free speech.

Joshua Midha is from Princeton, NJ and is studying Statistics and Political Science.