Christopher Garnier v. Michelle O'connor-Ratcliff

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER GARNIER; KIMBERLY Nos. 21-55118
GARNIER, 21-55157
Plaintiffs-Appellees/
Cross-Appellants, D.C. No.
3:17-cv-02215-
v. BEN-JLB
MICHELLE O’CONNOR-RATCLIFF;
T.J. ZANE, OPINION
Defendants-Appellants/
Cross-Appellees.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 11, 2022
Pasadena, California
Filed July 27, 2022
Before: Marsha S. Berzon, Richard C. Tallman, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Berzon
2 GARNIER V. O’CONNOR-RATCLIFF
SUMMARY *
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.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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.
COUNSEL
Jack M. Sleeth Jr. (argued) and Paul V. Carelli, IV, Artiano
Shinoff, San Diego, California, for Defendants-
Appellants/Cross-Appellees.
Cory J. Briggs (argued), Briggs Law Corporation, Upland,
California, for Plaintiffs-Appellees/Cross-Appellants.
OPINION
BERZON, Circuit Judge:
Today, social media websites like Facebook and Twitter
are, for many, “the principal sources for knowing current
events, checking ads for employment, speaking and listening
in the modern public square, and otherwise exploring the
vast realms of human thought and knowledge.” Packingham
v. North Carolina, 137 S. Ct. 1730, 1737 (2017).
Accordingly, social media sites “can provide perhaps the
most powerful mechanisms available to a private citizen to
make his or her voice heard.” Id.GARNIER V. O’CONNOR-RATCLIFF 5
Unsurprisingly, social media’s capacity for facilitating
communication and stirring public debate has not been lost
on public officials. From local county supervisors and state
representatives to the President of the United States, elected
officials across the country increasingly rely on social media
both to promote their campaigns and, after election, to
communicate with constituents and seek their input in
carrying out their duties as public officials.
This case concerns a dispute arising from two public
officials’ use of social media to communicate with
constituents about public issues. Beginning around 2014,
two members of the Poway Unified School District
(“PUSD” or the “District”) Board of Trustees, Michelle
O’Connor-Ratcliff and T.J. Zane (together, “the Trustees”),
created public Facebook and Twitter pages to promote their
campaigns for office. After they won and assumed office,
the two used their public social media pages to inform
constituents about goings-on at the School District and on
the PUSD Board, to invite the public to Board meetings, to
solicit input about important Board decisions, and to
communicate with parents about safety and security issues
at the District’s schools.
But public engagement with their social media pages was
not all s and s. Two parents of children in the School
District, Christopher and Kimberly Garnier, frequently left
comments critical of the Trustees and the Board on the
Trustees’ pages, sometimes posting the same long criticisms
repeatedly. After deleting or hiding the Garniers’ repetitive
comments for a time, the Trustees eventually blocked the
Garniers entirely from their social media pages. The
Garniers sued, asserting that the Trustees violated their First
Amendment rights by ejecting them from the social media
pages. After a bench trial, the district court agreed with the
6 GARNIER V. O’CONNOR-RATCLIFF
Garniers that their First Amendment rights had been
violated. Both parties appeal.
The Garniers’ claims present 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. For the following reasons, we
hold that, under the circumstances presented here, the
Trustees have acted under color of state law by using their
social media pages as public fora in carrying out their official
duties. We further hold that, applying First Amendment
public forum criteria, the restrictions imposed on the
Garniers’ expression are not appropriately tailored to serve
a significant governmental interest and so are invalid. We
therefore affirm the district court judgment.
I. BACKGROUND
A. Facts
Michelle O’Connor-Ratcliff and T.J. Zane successfully
ran for election to the PUSD Board of Trustees in November
2014, positions they still hold. In addition to their private
Facebook pages, which they shared only with family and
friends, O’Connor-Ratcliff and Zane created public
Facebook pages to promote their political campaigns. In
2016, O’Connor-Ratcliff also created a public Twitter page
related to her activities as a PUSD trustee. 1
Only the Trustees could create original “posts” on their
public Facebook pages. Members of the public who chose
1
Zane’s Twitter page is not at issue in this appeal.
GARNIER V. O’CONNOR-RATCLIFF 7
to like or follow the public pages were able to post
“comments” beneath the Trustees’ posts. Viewers could
also register non-verbal emoticon “reactions” to posts, such
as a “thumbs-up” reaction to “like” the post, a heart, or an
angry face. Facebook automatically truncates lengthy
comments that a Facebook user makes on another user’s
posts. Viewers of the post on which the comment was made
must click a “See More” button on the comment to read more
than the first few lines of a comment’s text. Accordingly,
viewers of the Trustees’ Facebook pages could easily scroll
past the truncated version of long comments they did not
wish to read. Unlike on Facebook, when viewing another
person’s Twitter profile, comments left by other Twitter
users on the account owner’s posts—called “replies,” rather
than comments—are not immediately visible. To see those
replies, viewers must click on the specific Tweet and then
scroll down to see individual replies.
Both Facebook and Twitter provide the Trustees with
some ability to moderate the content of comments on their
pages. Although the Trustees cannot turn off comments on
either platform, they can “delete” or “hide” individual
comments, thereby removing them entirely or making them
visible only to the Trustee and the person who posted the
comment. 2 Additionally, the Trustees can limit verbal
comments by using Facebook’s “word filter” function,
which allows a page owner to create a list of words that, if
2
At the time the Garniers filed their lawsuit, Twitter did not permit
users to hide other users’ replies to their Tweets without blocking those
users entirely. Twitter adopted a reply-hiding feature in 2019. Kayla
Yurieff, Twitter Now Lets You Hide Replies to Your Tweets, CNN Bus.
(Nov. 21, 2019), https://www.cnn.com/2019/11/21/tech/twitter-hide-
replies/index.html; see also About Replies and Mentions, Twitter Help
Ctr., https://help.twitter.com/en/using-twitter/mentions-and-replies#
hidden-reply-video (last visited June 14, 2022).
8 GARNIER V. O’CONNOR-RATCLIFF
used in a comment, will prevent the comment from
appearing beneath the page owner’s post.
The Trustees can also “block” Facebook and Twitter
users. Blocking a Facebook user prevents that user from
commenting on or registering a non-verbal reaction to the
posts on the blocker’s page, but the user is still able to
continue viewing the public Facebook page. In contrast, on
Twitter, once a user has been “blocked,” the individual can
neither interact with nor view the blocker’s Twitter feed.
Although before assuming office, the Trustees originally
used their social media pages to promote their campaigns,
they continued to use those pages to post content related to
PUSD business and the activities of the Board after winning
their elections. In the “About” section of her public
Facebook page, O’Connor-Ratcliff described herself as a
“Government Official,” listed her “Current Office” as
President of the PUSD Board of Education, and provided a
link to her PUSD official email address. Zane titled his
Facebook page “T.J. Zane, Poway Unified School District
Trustee,” and in the “About” section, he described his
Facebook as “the official page for T.J. Zane, Poway Unified
School District Board Member, to promote public and
political information.” Like O’Connor-Ratcliff, Zane
described himself as a “Government Official,” and he
described his interests as including “being accessible and
accountable; retaining quality teachers; increasing
transparency in decision making; preserving local standards
for education; and ensuring our children’s campus safety.”
Some of the Trustees’ posts described visits to PUSD’s
schools and promoted the achievements of the District’s
students and teachers. In other posts, O’Connor-Ratcliff and
Zane reported on PUSD Board-related business. For
instance, on several occasions, O’Connor-Ratcliff posted
GARNIER V. O’CONNOR-RATCLIFF 9
announcements soliciting students and community members
to apply for representative positions with the PUSD Board,
including the PUSD Student Board of Education, the Budget
Review Advisory Committee, and the Educational
Technology Advisory Committee. The Trustees also posted
information about PUSD’s Local Control Accountability
Plan (“LCAP”)—a three-year budgetary plan required by
California law “that describes the goals, actions, services,
and expenditures to support positive student outcomes that
address state and local priorities.” 3 See Cal. Educ. Code
§ 52060. In those posts, the Trustees invited the public to
fill out surveys related to the LCAP formulation process,
shared information about in-person community fora related
to LCAP planning, and reported on the plans ultimately
adopted by the Board.
Additionally, the Trustees posted about the PUSD
Board’s superintendent hiring and firing decisions, including
announcing the Board’s decision to terminate then-
Superintendent John Collins, inviting members of the public
to fill out online surveys and attend community fora
regarding the selection of a new superintendent, and
providing updates regarding superintendent applicants and
the ultimate hiring decision. The Trustees also posted
reminders to the public about upcoming PUSD Board
meetings and regularly shared their own recaps of important
issues discussed at Board meetings, such as bond issuance
decisions, employee contract negotiations, and priorities for
the upcoming school year.
Occasionally, the Trustees also used their social media
pages to alert the public about safety and security issues at
3
See Local Control and Accountability Plan (LCAP), Cal. Dep’t of
Educ. (Apr. 13, 2022), https://www.cde.ca.gov/re/lc/.
10 GARNIER V. O’CONNOR-RATCLIFF
PUSD. For instance, Zane posted about lockdowns
following threats to students, an active shooter incident near
one PUSD school, and an ongoing brush fire that forced the
evacuation of another PUSD school.
Neither O’Connor-Ratcliff nor Zane established any
rules of etiquette or decorum regulating how the public was
to interact with their social media accounts. There were, for
example, no size or subject limits set for comments. The
Trustees both occasionally solicited feedback from
constituents through their posts or responded to constituent
questions and comments. For instance, in a post providing a
summary of important issues discussed at a PUSD Board
meeting—one in a series of posts O’Connor-Ratcliff called
“The Board according to Michelle”—O’Connor-Ratcliff
noted that she had “received some good comments” to prior
posts and had “made some changes to the structure” of her
Board meeting summaries in response to those comments.
In June 2017, Zane posted a San Diego Union-Tribune
editorial about PUSD’s move from at-large voting to a
single-member district system, noting that he “agree[d] with
this editorial” and asking constituents, “what say you?”
Among the constituents who frequently commented on
the Trustees’ social media pages were Christopher and
Kimberly Garnier. The Garniers, who have children
attending PUSD schools, have for years been active
members of the PUSD community. In the years leading up
to the dispute at issue in this case, the Garniers were
especially vocal critics of the Board, particularly regarding
race relations in the District, and alleged financial
wrongdoing by then-Superintendent John Collins. 4 To
Relations between the Garniers and PUSD further soured around
4
2014. Following two incidents involving Christopher Garnier, District
GARNIER V. O’CONNOR-RATCLIFF 11
express their concerns about these and other issues, the
Garniers regularly attended public meetings of the PUSD
Board of Trustees, emailed PUSD Trustees regarding their
concerns, and met with individual Trustees.
Over time, the Garniers became frustrated with the
Trustees’ unresponsiveness in these encounters. Starting
sometime in 2015, the Garniers began commenting on the
Trustees’ social media posts. The Garniers’ social media
comments did not use profanity or threaten physical harm,
and almost all of their comments related to PUSD. But the
Garniers’ comments were often quite lengthy and were
frequently repetitive of other comments they had posted on
the Trustees’ social media communications. For instance,
Christopher Garnier posted nearly identical comments on
42 separate posts O’Connor-Ratcliff made to her Facebook
page. On one occasion, within approximately ten minutes
Christopher Garnier posted 226 identical replies to
O’Connor-Ratcliff’s Twitter page, one to each Tweet
O’Connor-Ratcliff had ever written on her public account.
Although there was some variation in their comments, the
Garniers’ complaints primarily concerned alleged
wrongdoing by Superintendent John Collins and race
relations at PUSD.
Frustrated with the repetitive nature of the Garniers’
comments, the Trustees began deleting or hiding the
comments from their Facebook pages. Later, tired of
monitoring and deleting or hiding the Garniers’ comments
individually, the Trustees took more decisive action:
Around October 2017, O’Connor-Ratcliff blocked both the
Garniers from her Facebook page and blocked Christopher
officials and the Garniers filed a series of legal actions against each
another.
12 GARNIER V. O’CONNOR-RATCLIFF
Garnier from her Twitter page. Zane likewise blocked the
Garniers from his Facebook page. 5
Sometime after they blocked the Garniers, the Trustees
began using Facebook’s “word filter” feature effectively to
preclude all verbal comments on their public pages.
Specifically, in December 2018, Zane added a list of
approximately 2,000 commonly used English words to his
Facebook word filter, so that any comment using one of
those words could not be posted. O’Connor-Ratcliff added
a smaller list of about 20 commonly used words to her own
filter. 6 The Trustees’ use of word filters as a practical matter
eliminated all new verbal comments from the Facebook
posts, but did not affect viewers’ abilities to register non-
verbal reactions, such as “liking” their posts with a thumbs-
up symbol or selecting another one of Facebook’s reaction
buttons. Because they were blocked, the Garniers were
unable to leave these nonverbal reactions on the Trustees’
Facebook pages.
5
At trial, Zane maintained that he never blocked the Garniers from
his public Facebook page, only from his personal pages. Screenshots of
Christopher Garnier’s view of Zane’s page show, however, that the
comment box and the emoticon reaction features, which appear
underneath posts when a user is not blocked, were disabled. Although
Kimberly Garnier was blocked from Zane’s public Facebook page at the
time that the Garniers filed this lawsuit, the district court found that Zane
had unblocked her shortly before trial.
6
It is not clear exactly when O’Connor-Ratcliff began using word
filters on her Facebook page. She testified that she believed she began
using word filters sometime in 2017, although she was not certain.
Screenshots of her Facebook page in the record show that the public
could still leave comments on her page as of September 2017.
GARNIER V. O’CONNOR-RATCLIFF 13
B. Procedural History
After the Trustees blocked the Garniers from their social
media pages, the Garniers filed suit against the Trustees
under 42 U.S.C. § 1983, seeking damages and declaratory
and injunctive relief. As relevant here, the Garniers alleged
that the Trustees’ social media pages constitute public fora
and that, by blocking them, the Trustees violated the
Garniers’ First Amendment rights.
After discovery, the Trustees moved for summary
judgment. The district court granted the Trustees qualified
immunity as to the Garniers’ damages claims but otherwise
permitted the case to proceed. On the merits, the district
court concluded that O’Connor-Ratcliff and Zane acted
under color of state law for purposes of 42 U.S.C. § 1983when they banned the Garniers from their social media
pages, noting that the Trustees’ “posts were linked to events
which arose out of their official status as PUSD Board
members,” that the content of their posts “went beyond their
policy preferences or information about their campaigns for
reelection,” and that “the content of many of their posts was
possible because they were ‘clothed with the authority of
state law.’” The district court next concluded that the
comment portions of the Trustees’ public social media pages
were designated public fora and that a trial was necessary to
determine disputed issues of fact as to whether the Trustees’
blocking of the Garniers was a reasonable, content-neutral
restriction on repetitive comments.
The case proceeded to a two-day bench trial. Both the
Garniers and the Trustees testified. After trial, the district
court issued findings of fact and conclusions of law and
awarded declaratory and injunctive relief to the Garniers.
The district court concluded that although Zane had
unblocked Kimberly Garnier on Facebook a few days before
14 GARNIER V. O’CONNOR-RATCLIFF
trial, her claims against Zane were not moot because it was
“not absolutely clear that Zane could not block Kimberly
Garnier again.” The district court next determined that the
Trustees’ decision to block the Garniers was content neutral
and intended “to enforce an unwritten rule of decorum
prohibiting repetitious speech on their social media pages.”
The district court nevertheless granted judgment to the
Garniers because blocking them indefinitely was not
narrowly tailored to the avoidance of repetitive comments on
the Trustees’ pages. The district court also taxed costs in
favor of the Garniers and denied without prejudice the
Trustees’ motion to re-tax costs, noting that they could re-
file their motion after appeal.
The Trustees appealed, challenging both the district
court’s judgment and the decision to award costs to the
Garniers. The Garniers cross-appealed, arguing that the
district court erred by granting qualified immunity to the
Trustees as to the Garniers’ damages claims.
II. DISCUSSION
On appeal, the Trustees contend that they closed any
public fora they may have created on their social media
pages by blocking almost all comments on their posts
through the use of word filters, mooting the dispute; that
creating, maintaining, and blocking the Garniers from their
social media accounts did not constitute state action under
§ 1983; and that, in any event, blocking them indefinitely is
a narrowly tailored time, place, or manner restriction. We
reject these arguments and affirm.
A. Mootness
We first address the Trustees’ contention that this case is
moot.
GARNIER V. O’CONNOR-RATCLIFF 15
As described, sometime after the Garniers filed their
lawsuit, the Trustees began using the word filter function on
Facebook to prevent any new comments from being posted
on their Facebook pages. The Trustees assert that, by
implementing word filters, they effectively closed their
Facebook pages as designated public fora, and that the
Garniers therefore “do not have standing” to challenge the
decision to block them. Although the Trustees’ use of word
filters on Facebook is relevant in some respects to the First
Amendment analysis of the Garniers’ claims, see infra
Section II.C., we disagree with the Trustees that the use of
word filters on Facebook moots this case.
First, in addition to blocking the Garniers on Facebook,
O’Connor-Ratcliff also blocked Christopher Garnier from
viewing her Twitter page or replying to her Tweets. The
Trustees testified at trial only that they used word filters on
Facebook. There is no evidence in the record that
O’Connor-Ratcliff similarly could or did restrict public
comments on her Twitter page. So, whatever changes the
Trustees may have made to their Facebook pages, such
changes would not affect Christopher Garnier’s claim
against O’Connor-Ratcliff for blocking him from her Twitter
page.
Second, although word filters have limited the public’s
ability to write verbal comments in response to the Trustees’
posts, the word filters have not changed Facebook’s non-
verbal “reaction” feature, which allows users to offer an
emotional reaction emoticon to Facebook posts, such as a
“like,” “angry face,” or “sad face” emoticon. Individuals
who have been blocked from a Facebook page, such as the
Garniers, cannot provide this non-verbal feedback.
Regaining the ability to provide non-verbal feedback to the
Trustees’ posts would constitute effective relief,
16 GARNIER V. O’CONNOR-RATCLIFF
notwithstanding the Trustees’ adoption of word filters. See
McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015)
(quoting Siskiyou Reg’l Educ. Project v. U.S. Forest Serv.,
565 F.3d 545, 559 (9th Cir. 2009)). The Garniers’ case
therefore retains “its character as a present, live
controversy.” Id. (quoting Siskiyou, 565 F.3d at 559).
Last, and independently dispositive, the voluntary nature
of the Trustees’ use of word filters means the dispute here is
not moot with respect to the Facebook pages or with respect
to the blocking of verbal comments, as voluntary cessation
of allegedly unlawful activity ordinarily does not moot a
case. “Otherwise, a defendant could engage in unlawful
conduct, stop when sued to have the case declared moot, then
pick up where he left off, repeating this cycle until he
achieves all his unlawful ends.” Already, LLC v. Nike, Inc.,
568 U.S. 85, 91 (2013). Accordingly, the party asserting
mootness following the voluntary cessation of allegedly
illegal conduct bears the “‘heavy burden’ of making
‘absolutely clear’ that it could not revert” to its prior
behavior. Fikre v. FBI, 904 F.3d 1033, 1038 (9th Cir. 2018)
(quoting Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012, 2019 n.1 (2017)).
The Trustees have not carried that burden. They have
provided no assurance that they will not, in the future,
remove the word filters from their Facebook pages and again
open those pages for verbal comments from the public. To
the contrary, at trial, O’Connor-Ratcliff contemplated the
possibility that she might one day change her Facebook page
to again “have some back and forth with my constituents.”
And although the Trustees have, for now, effectively
precluded any new comments on their Facebook pages, they
remain “practically and legally ‘free to return to [their] old
ways’ despite abandoning them in the ongoing litigation.”
GARNIER V. O’CONNOR-RATCLIFF 17
Id. at 1039 (quoting United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953)). 7 We therefore have jurisdiction to
consider the legality of the Trustees’ decision to block the
Garniers on Facebook both before and after the Trustees
began using word filters.
B. State Action
“To state a claim under § 1983, a plaintiff must allege
the violation of” a federal right “committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42,
48 (1988). Whether a government actor “is acting under
color of law is not always an easy call, especially when the
conduct is novel,” and “there is no rigid formula for
measuring state action for purposes of section 1983
liability.” Gritchen v. Collier, 254 F.3d 807, 813 (9th Cir.
2001) (quoting McDade v. West, 223 F.3d 1135, 1139 (9th
Cir. 2000)). 8 Rather, determining whether a public official’s
conduct constitutes state action “is a process of ‘sifting facts
and weighing circumstances.’” Id. (quoting McDade, 223
F.3d at 1139). “[N]o one fact can function as a necessary
condition across the board.” Rawson v. Recovery
Innovations, Inc., 975 F.3d 742, 751 (9th Cir. 2020) (quoting
7
For similar reasons, Zane’s decision to unblock Kimberly Garnier
from his Facebook page on the eve of trial does not moot her claim
against him. Zane has put in place no “procedural safeguards” to ensure
that he will not again block Kimberly Garnier from his Facebook page.
See Fikre, 904 F.3d at 1039 (citations omitted). His decision, without
explanation, to unblock Kimberly Garnier just days before trial is not the
kind of “unambiguous renunciation of [his] past actions” that “can
compensate for the ease with which [he] may relapse into them.” Id.
8
Because the ‘“color of law’ requirement of § 1983 is treated as the
equivalent of the ‘state action’ requirement under the Constitution,”
Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000), we use those
phrases interchangeably in this opinion.
18 GARNIER V. O’CONNOR-RATCLIFF
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288, 295 (2001)), cert. denied, 142 S. Ct. 69(2021). “At bottom, the inquiry is always whether the
defendant has exercised power possessed by virtue of state
law and made possible only because the wrongdoer is
clothed with the authority of state law.” Id. at 748 (internal
quotation marks omitted) (quoting West, 487 U.S. at 49).
Although “[w]hat is fairly attributable” to the state “is a
matter of normative judgment, and the criteria lack rigid
simplicity,” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.
2003) (quoting Brentwood, 531 U.S. at 295), we have
recognized “at least four different criteria, or tests, used to
identify state action,” the satisfaction of any one of which “is
sufficient to find state action, so long as no countervailing
factor exists,” id. Those tests include: the “public function
test,” applicable when private individuals are “endowed by
the State with powers or functions” that are “both
traditionally and exclusively governmental” and therefore
“become agencies or instrumentalities of the State,” id. at
1093 (quoting Lee v. Katz, 276 F.3d 550, 554–55 (9th Cir.
2002)); the “joint action test,” applicable when “the state has
so far insinuated itself into a position of interdependence
with the private entity that it must be recognized as a joint
participant in the challenged activity,” id. (quoting Parks
Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir.
1995)); the “compulsion test,” applicable when “the coercive
influence or ‘significant encouragement’ of the state
effectively converts a private action into a government
action,” id. at 1094 (quoting Sutton v. Providence St. Joseph
Med. Ctr., 192 F.3d 826, 842 (9th Cir. 1999)); and the
“nexus test,” applicable when there is “such 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,” id. at 1094–95 (quoting Brentwood, 531
GARNIER V. O’CONNOR-RATCLIFF 19
U.S. at 295). The fourth category most closely fits the facts
of this case. Whichever test applies, “the central question
remains whether ‘the alleged infringement of federal rights
[is] fairly attributable to the government.’” Id. at 1096
(alteration in original) (quoting Sutton, 192 F.3d at 835).
1. State Action Nexus Analysis
We have never addressed whether a public official acts
under color of state law by blocking a constituent from a
social media page. Doing so now, we conclude that, 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
the Garniers.
The Trustees’ use of their social media accounts was
directly connected to, although not required by, their official
positions. “The purpose of § 1983 is to deter state actors
from using the badge of their authority to deprive individuals
of their federally guaranteed rights.” McDade, 223 F.3d
at 1139. That is why “seemingly private behavior may be
fairly treated as that of the State” if there is “a close nexus
between the State and the challenged action.” Kirtley, 326
F.3d at 1094–95 (quoting Brentwood, 531 U.S. at 295).
Viewed in this light, the line of precedent most similar to
this case concerns whether off-duty governmental
employees are acting under color of state law. As here, the
focus in such cases is on whether the public official’s
conduct, even if “seemingly private,” is sufficiently related
to the performance of his or her official duties to create “a
close nexus between the State and the challenged action,” or
whether the public official is instead “pursu[ing] private
goals via private actions.” Naffe v. Frey, 789 F.3d 1030,
20 GARNIER V. O’CONNOR-RATCLIFF
1037–38 (9th Cir. 2015) (quoting Brentwood, 531 U.S. at
295).
Synthesizing such cases, Naffe explained that, when a
“state employee is off duty, whether he or she ‘is acting
under color of state law turns on the nature and
circumstances of the’” employee’s conduct “and the
relationship of that conduct to the performance of his official
duties.” Id. at 1036 (quoting Anderson v. Warner, 451 F.3d
1063, 1068 (9th Cir. 2006)). Specifically, Naffe held that a
“state employee who is off duty nevertheless acts under
color of state law when (1) the employee ‘purport[s] to or
pretend[s] to act under color of law,’ (2) his ‘pretense of
acting in the performance of his duties . . . had the purpose
and effect of influencing the behavior of others,’ and (3) the
harm inflicted on plaintiff ‘related in some meaningful way
either to the officer’s governmental status or to the
performance of his duties.’” Id. at 1037 (alterations in
original) (first quoting Van Ort v. Estate of Stanewich, 92
F.3d 831, 838 (9th Cir. 1996); then quoting Anderson, 451
F.3d at 1069; and then quoting Martinez v. Colon, 54 F.3d
980, 987 (1st Cir. 1995)).
For example, an off-duty jail officer acted under color of
state law while assaulting someone when he “prevented
bystanders from intervening in his attack by claiming that he
was ‘a cop.’” Id. at 1037 (quoting Anderson, 451 F.3d
at 1065–66). By asserting that his actions were “police
business,” the officer invoked “his law enforcement status,”
thereby creating a sufficiently “close nexus between his
work at the jail” and the assault to constitute state action. Id.(quoting Anderson, 451 F.3d at 1066). In contrast, an off-
duty officer did not act under color of state law while
attempting to rob someone when, at the time of the robbery,
he “was attired not in a uniform but in blue jeans,” “wore a
GARNIER V. O’CONNOR-RATCLIFF 21
mask, sunglasses and cap in an attempt to conceal his
identity,” “did not display a badge,” and “denied being a
police officer.” Stanewich, 92 F.3d at 833–34, 838. Under
those circumstances, the nexus between the officer’s actions
and his official duties was insufficient because “[a]t no point
did [he] purport to be acting as a policeman.” Id. at 839.
What matters, in other words, is whether the state official
“abused her responsibilities and purported or pretended to be
a state officer” at the time of the alleged constitutional
violation. Naffe, 789 F.3d at 1036 (quoting McDade,
223 F.3d at 1141).
Applying Naffe’s framework here, O’Connor-Ratcliff’s
and Zane’s use of their social media pages qualifies as state
action under § 1983.
First, the Trustees “purport[ed] . . . to act in the
performance of [their] official duties” through the use of
their social media pages. Anderson, 451 F.3d at 1069(quoting McDade, 223 F.3d at 1140). The Trustees
identified themselves on their Facebook pages as
“government official[s],” listed their official titles in
prominent places on both their Facebook and Twitter pages,
and, in O’Connor-Ratcliff’s case, included her official
PUSD email address in the page’s contact information.
Zane, for his part, wrote that his Facebook page was “the
official page for T.J. Zane, Poway Unified School District
Board Member, to promote public and political
information.”
Consistent with the Trustees’ official identifications on
their social media pages, the content of the Trustees’ pages
was overwhelmingly geared toward “provid[ing]
information to the public about” the PUSD Board’s “official
activities and solicit[ing] input from the public on policy
issues” relevant to Board decisions. Davison v. Randall
22 GARNIER V. O’CONNOR-RATCLIFF
(Davison II), 912 F.3d 666, 680 (4th Cir. 2019). O’Connor-
Ratcliff and Zane regularly posted about school board
meetings, surveys related to school district policy decisions,
the superintendent hiring process, budget planning, and
public safety issues. So, 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 PUSD Board.
Second, the Trustees’ presentation of their social media
pages as official outlets facilitating their performance of
their PUSD Board responsibilities “had the purpose and
effect of influencing the behavior of others.” Naffe, 789 F.3d
at 1037 (quoting Anderson, 451 F.3d at 1069). Zane’s
Facebook page, as of 2017, had nearly 600 followers, and
O’Connor-Ratcliff’s had nearly 300. Both Trustees actively
solicited constituent input about official PUSD matters,
including encouraging constituents to mark their calendars
for upcoming Board meetings, to fill out surveys relating to
Board decision-making, and to apply for volunteer
committees run by the Board. And both Trustees sought
feedback from constituents, and responded to their
comments. It was by “invoking” their “‘governmental
status’ to influence the behavior of those around” them that
the Trustees were able to muster this kind of public
engagement with their social media pages. Anderson, 451
F.3d at 1069.
Finally, the Trustees’ management of their social media
pages “related in some meaningful way” to their
“governmental status” and “to the performance of [their]
duties.” Naffe, 789 F.3d at 1037 (quoting Anderson, 451
F.3d at 1069). The Trustees used their social media pages to
communicate about, among other things, the selection of a
new superintendent, the formulation of PUSD’s LCAP plan,
GARNIER V. O’CONNOR-RATCLIFF 23
the composition of PUSD’s Budget Advisory Committee,
the dates of PUSD Board meetings, and the issues discussed
at those meetings. Those posts related directly to the
Trustees’ duties. More generally, the Trustees’ use of social
media to keep the public apprised of goings-on at PUSD
accords with the Board’s power to “[i]nform and make
known to the citizens of the district, the educational
programs and activities of the schools therein.” Cal. Educ.
Code § 35172(c). 9
Moreover, “the specific actions giving rise to” the
Garniers’ claim—the Trustees’ blocking of the Garniers
from their social media pages—were “linked to events which
arose out of [the Trustees’] official status.” Davison II, 912
F.3d at 681 (quoting Rossignol v. Voorhaar, 316 F.3d 516,
524 (4th Cir. 2003)). Although the Garniers’ repetitive
comments often were not directly responsive to any
particular post by the Trustees, their comments
predominantly dealt with issues related to the PUSD Board’s
governance of the District, particularly concerns about race
relations in the District and racial disparities in suspension
rates between white and black PUSD students, as well as
allegations of financial wrongdoing by then-PUSD
Superintendent John Collins. And the Trustees’ stated
reasons for blocking the Garniers, discussed in more detail
below, were that the Garniers’ comments, in their view,
tended to “fill up the page,” and detract from the messages
they wished to communicate in their posts, many of which
9
See also Role of the Board, BB 9000(a), Poway Unified Sch. Dist.
(adopted Aug. 9, 2018), https://www.powayusd.com/PUSD/media/
Board-Images/BoardPolicy/9000/BB-9000-Role-of-the-Board.pdf
(requiring the Board to “ensure that the district is responsive to the
values, beliefs, and priorities of the community” and to set “the direction
for the district through a process that involves the community,
parents/guardians, students, and staff”).
24 GARNIER V. O’CONNOR-RATCLIFF
pertained to “the performance of [their] official duties.”
Naffe, 789 F.3d at 1036 (quoting Anderson, 451 F.3d at
1069). In other words, because the Trustees presented and
administered their social media pages as official organs for
carrying out their PUSD Board duties, the Trustees’ decision
to block the Garniers for allegedly interfering with that use
of the social media pages “related in some meaningful way
either to the [Trustees’] governmental status or to the
performance of [their] duties.” Id. at 1037 (quoting
Anderson, 451 F.3d at 1069).
Even though they clothed their pages in the authority of
their offices and used their pages to communicate about their
official duties, the Trustees contend that their use of social
media did not constitute state action because the pages, they
maintain, were personal campaign pages designed only to
advance their own political careers, and because PUSD
provided no financial support or authorization for the pages.
Many of the Trustees’ posts did concern workaday visits to
schools and the achievements of PUSD’s students and
teachers, material that could promote the Trustees’ personal
campaign prospects. But the Trustees’ posts about PUSD
school activities generally do not read as advertising
“campaign promises” kept or touting their own political
achievements. After their election in 2014, the Trustees
virtually never posted overtly political or self-promotional
material on their social media pages. Rather, their posts
either concerned official District business or promoted the
District generally.
As to the lack of PUSD funding or authorization, the
Trustees’ pages did not contain any disclaimer that the
“statements made on this web site reflect the personal
opinions of the author” and “are not made in any official
capacity.” Naffe, 789 F.3d at 1033. To the contrary, both in
GARNIER V. O’CONNOR-RATCLIFF 25
the appearance and the content of the pages, the Trustees
effectively “display[ed] a badge” to the public signifying
that their accounts reflected their official roles as PUSD
Trustees, whether or not the District had in fact authorized
or supported them. Id. at 1036 (quoting Stanewich, 92 F.3d
at 838).
The Trustees also contend that their use of social media
cannot constitute state action because a legislator “may only
act at a properly convened meeting of the legislative body
and may only offer a matter for consideration or vote on a
matter.” This argument is unconvincing.
For one thing, the duties of elected representatives
extend beyond “participating in debates and voting.”
Williams v. United States, 71 F.3d 502, 507 (5th Cir. 1995);
accord Does 1–10 v. Haaland, 973 F.3d 591, 600–02 (6th
Cir. 2020); Council on Am. Islamic Rels. v. Ballenger, 444
F.3d 659, 665 (D.C. Cir. 2006). In addition to those duties,
“a primary obligation” of legislators “in a representative
democracy is to serve and respond to [their] constituents.”
Ballenger, 444 F.3d at 665 (quoting Williams, 71 F.3d at
507). Likewise, in defining the contours of legislative
immunity, we have recognized that “not all governmental
acts by a local legislator . . . are necessarily legislative in
nature,” and that conduct of an “administrative or executive”
nature, even if outside a legislator’s core duties, may be
actionable under § 1983. Trevino ex rel. Cruz v. Gates, 23
F.3d 1480, 1482 (9th Cir. 1994) (quoting Cinevision Corp.
v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984)).
In any event, the core of our state action inquiry is
whether the defendant’s conduct is “fairly attributable to the
State,” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting
Lugar v. Edmondson Oil Co., 457 U.S. 922, 923 (1982))—
that is, whether there is “such a close nexus between the
26 GARNIER V. O’CONNOR-RATCLIFF
State and the challenged action that the seemingly private
behavior may be fairly treated as that of the State itself,”
Kirtley, 326 F.3d at 1095 (quoting Brentwood, 531 U.S. at
295). By representing themselves to be acting in their
official capacities on their social media and posting about
matters that directly related to their official PUSD Board
duties, the Trustees “exercised power possessed by virtue of
state law and made possible only because” they were
“clothed with the authority of state law.” Rawson, 975 F.3d
at 748 (internal quotation marks omitted) (quoting West,
487 U.S. at 49).
Given all these attributes of the Trustees’ social media
pages, we hold that the Trustees’ maintenance of their social
media pages, including the decision to block the Garniers
from those pages, constitutes state action under § 1983.
Although the Trustees acted under color of state law in
this case, we reiterate that finding state action “is a process
of ‘sifting facts and weighing circumstances.’” Gritchen,
254 F.3d at 813 (quoting McDade, 223 F.3d at 1139). Given
the fact-sensitive nature of state action analyses, “not every
social media account operated by a public official is a
government account.” Knight First Amend. Inst. at Colum.
Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019), cert.
granted, judgment vacated as moot sub nom. Biden v. Knight
First Amend. Inst. at Colum. Univ., 141 S. Ct. 1220 (2021).
Rather, courts should look to considerations such as “how
the official describes and uses the account,” “to whom
features of the account are made available,” and how
members of the public and government officials “regard and
treat the account.” Id. In this case, the pertinent factors all
indicate that O’Connor-Ratcliff and Zane unequivocally
“cloaked” their social media accounts “with the authority of
the state.” Howerton v. Gabica, 708 F.2d 380, 384–85 (9th
GARNIER V. O’CONNOR-RATCLIFF 27
Cir. 1983). We hold that the Trustees acted under color of
state law when they blocked the Garniers from their social
media accounts.
2. Decisions of Other Circuits
In recent years, the Second, Fourth, Sixth, and Eighth
Circuits have each addressed claims regarding the blocking
of access to government officials’ social media pages. Three
of those courts’ applications of the state action doctrine in
those similar cases are consistent with the approach we take
here.
In Davison II, 912 F.3d 666, the Fourth Circuit held that
the Chair of the Loudoun County, Virginia, Board of
Supervisors acted under color of state law and violated the
First Amendment when she banned a constituent from the
“Chair Phyllis J. Randall” Facebook page she created the day
before she took office, id. at 672–73. Like the posts to the
Trustees’ pages here, Randall’s posts to her “governmental
official” Facebook page dealt “with numerous aspects of
Randall’s official responsibilities,” including posting “to
notify the public about upcoming Loudoun Board meetings,
and the subjects to be discussed during those meetings,” “to
inform Loudoun County residents about significant public
safety issues,” and “to communicate with constituents
regarding which municipal streets required plowing”
following a large snowstorm. Id. at 673–74. Additionally,
like the Trustees here, Randall used her page to invite
members of the public to participate in certain constituent
commissions and “to advise the public regarding official
actions taken by the Loudoun Board.” Id. at 674. Davison
II also noted that Randall identified herself as a “government
official” on the page and listed her official county email
address in the page’s contact info. Id.28 GARNIER V. O’CONNOR-RATCLIFF
Citing, as we have, cases involving the conduct of off-
duty state officers, the court concluded that Randall’s
“purportedly private actions” bore a “sufficiently close
nexus” with the Board of Supervisors “to satisfy Section
1983’s color-of-law requirement.” Id. at 680 (quoting
Rossignol, 316 F.3d at 524). Randall’s actions, Davison II
emphasized, were “linked to events which arose out of [her]
official status.” Id. (quoting Rossignol, 316 F.3d at 524). In
particular, Davison II stressed that Randall “used the Chair’s
Facebook Page ‘as a tool of governance’” by providing
information to the public about the Board’s official
activities, soliciting input from constituents on policy issues,
and keeping the public informed about public safety issues.
Id. (quoting Davison v. Loudoun Cnty. Bd. of Supervisors
(Davison I), 267 F. Supp. 3d 702, 713 (E.D. Va. 2017)).
Additionally, by listing her title and official contact
information and categorizing the page as that of a
“government official,” Randall “swathe[d] the” page “in the
trappings of her office.” Id. at 680–81 (quoting Davison I,
267 F. Supp. 3d at 714). The Fourth Circuit concluded that
because Randall “clothed the Chair’s Facebook Page in ‘the
power and prestige of h[er] state office” and administered
the page to “perform[] actual or apparent dut[ies] of h[er]
office,” a “private citizen could not have created and used”
the page in the same manner that she did. Id. at 681
(alterations in original) (first quoting Harris v. Harvey, 605
F.2d 330, 337 (7th Cir. 1979); and then quoting Martinez, 54
F.3d at 986).
The Second Circuit conducted a similar analysis in
Knight, 928 F.3d 226.10 Knight held that the President acted
10
Although the Supreme Court vacated Knight as moot after
President Donald Trump left office, the opinion nonetheless has
persuasive value. See Spears v. Stewart, 283 F.3d 992, 1017 n.16 (9th
GARNIER V. O’CONNOR-RATCLIFF 29
in a governmental capacity when he blocked followers of his
Twitter account because they posted Tweets critical of him
and his policies. 928 F.3d at 234–36. The court first stressed
the “substantial and pervasive government involvement
with, and control over,” the President’s Twitter account. Id.
at 235. Knight emphasized that the account was “presented
by the President” as “belonging to, and operated by, the
President” and was registered to “Donald J. Trump, ‘45th
President of the United States of America, Washington,
D.C.’” Id. The President’s Tweets were also “official
records that must be preserved under the Presidential
Records Act.” Id.
Knight further explained that the President had used his
Twitter account “as a channel for communicating and
interacting with the public about his administration,”
including to announce “matters related to official
government business,” “to engage with foreign leaders,” and
“to announce foreign policy decisions and initiatives.” Id. at
235–36. The account’s “like,” “retweet,” and “reply”
functions also helped the President “to understand and to
evaluate the public’s reaction to what he says and does.” Id.
at 236.
Altogether, the court determined, these facts established
that the account was “an important tool of governance and
executive outreach,” and therefore that the evidence of “the
public, non-private nature of the Account” was
“overwhelming.” Id. The court acknowledged, as we have,
that “not every social media account operated by a public
official is a government account,” and instructed that courts
should look to “how the official describes and uses the
Cir. 2002) (en banc); DCD Programs, Ltd. v. Leighton, 90 F.3d 1442,
1448 n.9 (9th Cir. 1996).
30 GARNIER V. O’CONNOR-RATCLIFF
account,” “to whom features of the account are made
available,” and “how others . . . regard and treat the
account.” Id.In contrast to Davison II and Knight, the Eighth Circuit
in Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021),
concluded that Missouri state representative Cheri Toalson
Reisch was not acting under color of state law when she
blocked a constituent from her Twitter account, id. at 823.
The court reasoned that Reisch created her Twitter account
“when she announced her candidacy for state representative”
and that, after taking office, Reisch continued to run the
Twitter account “in a private capacity, namely, as a
campaigner for political office” rather than as a public
official. Id. at 823–25.
In support of its conclusion, the court cited, for instance,
one Tweet in which Reisch stated she was “proud to deliver
results during the first half of session” and another in which
she asserted she was “making good on” a promise “to
improve our #economy.” Id. at 824. In contrast to the
account in Davison II, the Eighth Circuit concluded, the
“overall theme of Reisch’s tweets—that[] she’s the right
person for the job—largely remained the same after her
electoral victory” and focused on touting “her success in
fulfilling” promises made on the campaign trail. Id. at 826.
Although Reisch “occasionally used the account to provide
updates on where certain bills were in the legislative process
or the effect certain recently enacted laws had had on the
state,” those Tweets were “fully consistent with Reisch using
the account to tout her record.” Id.Campbell acknowledged that “Reisch’s official duties as
a representative extend beyond voting or participating in
committee meetings and include things like communicating
with constituents about legislation.” Id. at 827. And the
GARNIER V. O’CONNOR-RATCLIFF 31
court recognized that a “private account can turn into a
governmental one if it becomes an organ of official
business.” Id. at 826. But the majority in Campbell
ultimately concluded “that is not what happened here.” Id.Reisch’s “sporadic engagement in” communication about
legislation did “not overshadow” her otherwise clear “effort
to emphasize her suitability for public office.” Id. at 827.
Unlike the Facebook page in Davison II, Reisch’s page
contained only “occasional stray messages that might
conceivably be characterized as conducting the public’s
business.” Id. “In short,” Campbell concluded Reisch’s
Twitter account was “more akin to a campaign newsletter
than to anything else,” and so Reisch retained the
“prerogative to select her audience and present her page as
she sees fit.” Id.Although the results in Davison II and Knight, on the one
hand, and Campbell, on the other, were different, Campbell
expressly applied the approach adopted in Davison II and
Knight, so the mode of analysis in these cases was generally
consistent. 11 Applying that approach, we conclude that the
Trustees’ administration of their social media accounts in
this case much more closely resembles the use of the
accounts in Davison II and Knight than the use of the account
in Campbell, as recounted by the majority opinion.
11
We note that Judge Kelly’s dissent in Campbell makes a strong
case that, applying Davison II and Knight to the facts of Campbell, the
conclusion should have been that Reich’s blockage of Campbell from
her Twitter page was state action. Campbell, 986 F.3d at 828–29 (Kelly,
J., dissenting). For present purposes, however, the pertinence of
Campbell is that its general approach is in accord with ours and with that
in Davison II and Knight, not whether it was correctly decided on its
facts.
32 GARNIER V. O’CONNOR-RATCLIFF
First, as in Davison II and Knight, the Trustees presented
their social media pages as belonging to “government
officials.” O’Connor-Ratcliff listed her official PUSD
contact information on her Facebook page and identified
herself as “President” of the Poway Unified School District
Board of Education on her Twitter page. Zane similarly
described his Facebook page as “the official page for T.J.
Zane, Poway Unified School District Board Member, to
promote public and political information.” See Davison II,
912 F.3d at 674; Knight, 928 F.3d at 235. Moreover, unlike
the representative in Campbell, who the majority opinion in
that case determined used her account not in service of her
official duties but rather “as a campaigner for political
office,” 986 F.3d at 823–25, the Trustees routinely used their
social media “as a tool of governance,” Davison II, 912 F.3d
at 680 (quoting Davison I, 267 F. Supp. 3d at 713). They
posted on their social media pages “to notify the public
about” PUSD Board meetings and the subjects “discussed
during those meetings,” id. at 673, “to inform” parents
“about significant public safety issues” such as fires and
active shooters, id., to announce “policy decisions and
initiatives” such as the selection of a new PUSD
superintendent, Knight, 928 F.3d at 236, and “to understand
and to evaluate the public’s reaction to what” they did in
office, id. at 236.
We note that the Sixth Circuit recently held in Lindke v.
Freed that city manager James Freed was not a state actor
when he blocked a citizen from his public Facebook page,
adopting a somewhat different analysis from ours and that of
the Second, Fourth, and Eighth Circuits. 37 F.4th 1199,
1201 (6th Cir. 2022). Although the court also applied a
nexus test for state action, it expressly “part[ed] ways” with
the other Circuits. Id. at 1206. In doing so, the Sixth Circuit
held inapposite state action cases involving off-duty police
GARNIER V. O’CONNOR-RATCLIFF 33
officers, on the ground that a police officer’s appearance
plays a unique role in the ability to invoke state authority.
Id. Instead, the court relied on prior Sixth Circuit precedents
that addressed similar questions by applying a “state-official
test,” inquiring whether a public official is performing an
actual or apparent official duty or whether the action could
have been taken without the authority of the person’s
position. Id. at 1202–03. Thus, “[i]nstead of examining a
[social media] page’s appearance or purpose,” the court
“focus[ed] on the actor’s official duties and use of
government resources or state employees.” Id. at 1206.
We decline to follow the Sixth Circuit’s reasoning.
Although the uniform of a police officer carries particular
authority, our Circuit’s analysis of whether a police officer
acts under color of law does not turn only on the person’s
sporting of a uniform or the person’s “appearance” alone.
Rather, we consider whether the officer self-identified as a
state employee and generally “purported . . . to be a state
officer” at the time of the alleged violation, an inquiry that
considers actions in addition to appearance. Naffe, 789 F.3d
at 1036–37 (quoting McDade, 223 F.3d at 1141); see also
Stanewich, 92 F.3d at 833 (noting the officer denied being a
police officer and did not show a badge). We thus conclude,
as did the Fourth Circuit in Davison II, that off-duty officer
cases are instructive as to analysis of other state employees’
conduct, including in the arena of social media.
In short, we follow the mode of analysis of the Second,
Fourth, and Eighth Circuits to hold that the Trustees used
their social media accounts as “an organ of official
business.” Campbell, 986 F.3d at 826. As with the
Facebook page in Davison II, a “private citizen could not
have created and used” the Trustees’ pages in the manner
that they did because the Trustees “clothed” their pages in
34 GARNIER V. O’CONNOR-RATCLIFF
“the power and prestige of” their offices “and created and
administered” the pages “to ‘perform[] actual or apparent
dut[ies]’” of their offices. 912 F.3d at 681 (alterations in
original) (first quoting Harris, 605 F.2d at 337; and then
quoting Martinez, 54 F.3d at 986). Because they so used
their social media pages, the Trustees were state actors.
C. First Amendment Violation
As state actors, the Trustees violated the First
Amendment when they blocked the Garniers from their
social media pages. The interactive sections of the Trustees’
social media accounts constituted public fora. And even
assuming that the Trustees blocked the Garniers only to
enforce an unspoken, content-neutral rule against repetitive
comments, the Trustees’ decision to block the Garniers is not
sufficiently tailored to a significant governmental interest to
pass First Amendment scrutiny. 12
3. Forum Analysis
The “extent to which the Government may limit access”
to a government forum “depends on whether the forum is
public or nonpublic.” Hopper v. City of Pasco, 241 F.3d
1067, 1074 (9th Cir. 2001) (quoting Cornelius v. NAACP
Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)).
12
We review constitutional facts de novo in First Amendment cases,
conducting “an independent examination of the whole record” to ensure
that “the judgment does not constitute a forbidden intrusion on the field
of free expression.” Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 742
(9th Cir. 2021) (quoting Bose Corp. v. Consumers Union of United
States, Inc., 466 U.S. 485, 499 (1984)). We also review de novo the
application of law to facts “on free speech issues.” Lair v. Motl, 873
F.3d 1170, 1178 (9th Cir. 2017) (quoting Lair v. Bullock, 798 F.3d 736,
745 (9th Cir. 2015)).
GARNIER V. O’CONNOR-RATCLIFF 35
“A designated public forum exists where ‘the government
intentionally opens up a nontraditional forum for public
discourse.’” Id. (quoting DiLoreto v. Downey Unified Sch.
Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999)). To
determine whether the government has created a designated
public forum, we look “to the policy and practice of the
government to ascertain whether it intended to designate a
place not traditionally open to assembly and debate as a
public forum,” as well as “the nature of the property and its
compatibility with expressive activity.” Id. at 1075 (quoting
Cornelius, 473 U.S. at 802). In a designated public forum,
“the government may impose reasonable restrictions on the
time, place, or manner of protected speech, provided the
restrictions” are “narrowly tailored to serve a significant
governmental interest” and “leave open ample alternative
channels for communication of the information.” Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting
Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293
(1984)).
A limited public forum, by contrast, is “a sub-category
of a designated public forum that ‘refer[s] to a type of
nonpublic forum that the government has intentionally
opened to certain groups or to certain topics.’” Hopper, 241
F.3d at 1074 (alteration in original) (quoting DiLoreto, 196
F.3d at 965). The “[s]tandards for inclusion and exclusion”
for a limited public forum “must be unambiguous and
definite”; without “objective standards, government officials
may use their discretion . . . as a pretext for censorship.” Id.
at 1077 (quoting Christ’s Bride Ministries, Inc. v. Se. Pa.
Transp. Auth., 148 F.3d 242, 251 (3d Cir. 1998)). In a
limited public forum, restrictions on speech and speakers are
permissible so long as they are “viewpoint neutral and
reasonable in light of the purpose served by the forum.” Id.at 1074–75 (quoting DiLoreto, 196 F.3d at 965). Put another
36 GARNIER V. O’CONNOR-RATCLIFF
way, the restriction must be “consistent with preserving the
property for the purpose to which it is dedicated.” DiLoreto,
196 F.3d at 967.
Social media websites—Facebook and Twitter in
particular—are fora inherently compatible with expressive
activity. “While in the past there may have been difficulty
in identifying the most important places (in a spatial sense)
for the exchange of views, today the answer is clear. It is
cyberspace—the ‘vast democratic forums of the Internet’ in
general, . . . and social media in particular.” Packingham,
137 S. Ct. at 1735 (quoting Reno v. ACLU, 521 U.S. 844,
868 (1997)). Social media sites allow users “to gain access
to information and communicate with one another about it
on any subject that might come to mind” and thereby
“provide perhaps the most powerful mechanisms available
to a private citizen to make his or her voice heard.” Id. at
1737.
The Trustees contend that they always intended their
social media pages to be a “one-way” channel of
communication. But what matters in forum analysis “is what
the government actually does—specifically, whether it
consistently enforces the restrictions on use of the forum that
it adopted.” Hopper, 241 F.3d at 1075. Before the Trustees
began using word filters, their social media pages were open
and available to the public without any restriction on the
form or content of comments. And far from forbidding
comments, the Trustees occasionally solicited feedback
from constituents through their posts and responded to
individuals who left comments. Although the Trustees
eventually began deleting or hiding some lengthy or
repetitive comments, they never adopted any formal rules of
decorum or etiquette for their pages that would be
“sufficiently definite and objective to prevent arbitrary or
GARNIER V. O’CONNOR-RATCLIFF 37
discriminatory enforcement.” Am. Freedom Def. Initiative
v. King County, 904 F.3d 1126, 1130 (9th Cir. 2018). The
Trustees’ suggestion that they had an unspoken policy
against repetitive comments does not satisfy the requirement
that “[s]tandards for inclusion and exclusion” “must be
unambiguous and definite” to create a limited public forum.
Hopper, 241 F.3d at 1077 (quoting Christ’s Bride, 148 F.3d
at 251). Even an “abstract policy statement purporting to
restrict access to a forum is not enough.” Id. at 1075. No
policy statement is surely not enough.
Where, as here, the government has made a forum
“available for use by the public” and “has no policy or
practice of regulating the content” posted to that forum, it
has created a designated public forum. Giebel v. Sylvester,
244 F.3d 1182, 1188 (9th Cir. 2001). We conclude that
O’Connor-Ratcliff’s Twitter page is a designated public
forum, and that before the Trustees began using word filters
to curtail comments on their Facebook posts, the interactive
portions of the Trustees’ Facebook pages were designated
public fora.
As recounted earlier, sometime after blocking the
Garniers from their Facebook pages, the Trustees began
using a Facebook feature that allows the administrators of
public pages to create a list of words and then filter out any
comments that use any word on that list. The Trustees assert
that, by implementing word filters, they effectively closed
their Facebook pages as public fora. But even with the
addition of word filters, members of the public not blocked
from the Trustees’ pages remain able to register non-verbal
“reactions” to the Trustees’ posts. The Trustees therefore
have not closed the interactive portion of their pages entirely.
The Trustees’ use of word filters has, however, changed the
38 GARNIER V. O’CONNOR-RATCLIFF
characteristics of the public forum that now exists on those
pages.
That is to say, before adding word filters to their
Facebook pages, the Trustees had “no policy or practice of
regulating the content” posted to the fora. Id. They have
since restricted public interaction with their Facebook pages
to the use of Facebook’s non-verbal reaction icons. In so
doing, the Trustees now “exercise the clear and consistent
control” over the interactive portions of their Facebook
pages “that our cases require to maintain a limited public
forum.” Hopper, 241 F.3d at 1080. 13
In sum, the Trustees’ Facebook pages, before the
implementation of word filters on Facebook, constituted
designated public fora, and O’Connor-Ratcliff’s Twitter
page remains a designated public forum. With the addition
of word filters that prohibit comments and restrict users to
non-verbal reactions, the Trustees’ Facebook pages are
limited public fora.
4. Governmental Interest and Tailoring
Having determined the types of public fora at issue, we
now analyze whether the Trustees’ decisions to block the
Garniers from their social media pages violated the First
Amendment. They did.
13
The Garniers do not contend, and the record here does not suggest,
that the Trustees began using word filters for viewpoint discriminatory
reasons or that the word filters themselves block comments based on
their content or viewpoint. We therefore do not address how our analysis
might be different if the Trustees’ use of word filters was designed to
block only critical comments or only comments concerning particular
subjects.
GARNIER V. O’CONNOR-RATCLIFF 39
We note at the outset that it is a close question whether
the Trustees’ decisions to block the Garniers were viewpoint
discriminatory. Whether in a designated public forum or a
limited public forum, “restrictions based on viewpoint are
prohibited.” Pleasant Grove City v. Summum, 555 U.S. 460,
469 (2009). The Trustees maintain that they blocked the
Garniers because of the repetitive nature of their comments,
not because of their often-critical opinions of the Trustees.
Specifically, the Trustees testified that they blocked the
Garniers because the Garniers were “spamming [them]
repetitively,” and the repetitive nature of their comments
tended to “fill up the page.”
There are reasons to doubt that explanation. For one,
even lengthy comments on Facebook and replies on Twitter
do not significantly detract from or overwhelm the original
post. Facebook automatically truncates lengthy posts. On
Twitter, replies to a user’s Tweets are not visible from the
user’s home page. So the Trustees’ contention that the
Garniers’ comments “fill[ed] up the page” and detracted
from the “streamlined, bulletin board nature” of their
accounts is inconsistent with the technological reality. What
is more, the record shows that the Trustees hid or deleted
negative comments from the Garniers that were not
repetitive but did not similarly hide or delete positive
comments from other people. And to the extent the Trustees
maintain that they intended to keep their pages as a
“streamlined,” one-way channel of communication, their
replies to constituents’ comments undermines that assertion.
In the end, we need not resolve whether the Trustees’
decision to block the Garniers was viewpoint discriminatory.
Even when viewed as a content-neutral time, place, or
manner restriction intended to eliminate repetitive
40 GARNIER V. O’CONNOR-RATCLIFF
comments, the Trustees’ complete blocking of the Garniers
from their social media pages violates the First Amendment.
In a designated public forum, such as O’Connor-
Ratcliff’s Twitter page or the Trustees’ Facebook pages
before the implementation of word filters, “the government
may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions” are
“narrowly tailored to serve a significant governmental
interest” and “leave open ample alternative channels for
communication of the information.” Ward, 491 U.S. at 791(quoting Clark, 468 U.S. at 293). Likewise, “speakers can
be excluded” only when that exclusion is “narrowly drawn.”
Hopper, 241 F.3d at 1074 (quoting Cornelius, 473 U.S. at
800). A time, place, or manner restriction “need not be the
least restrictive or least intrusive means of” serving the
government’s content-neutral interests. Ward, 491 U.S. at
798. But it may not “burden substantially more speech than
is necessary to further the government’s legitimate
interests,” nor may the government “regulate expression in
such a manner that a substantial portion of the burden on
speech does not serve to advance its goals.” Id. at 799.
Accordingly, “the existence of obvious, less burdensome
alternatives is ‘a relevant consideration in determining
whether the “fit” between ends and means is reasonable.’”
Berger v. City of Seattle, 569 F.3d 1029, 1041 (9th Cir. 2009)
(en banc) (quoting City of Cincinnati v. Discovery Network,
Inc., 507 U.S. 410, 417 n.13 (1993)).
Under this standard, O’Connor-Ratcliff’s decision to
block Christopher Garnier from her Twitter page and the
Trustees’ initial decision to block the Garniers from their
Facebook pages were not narrowly tailored to serve a
significant governmental interest.
GARNIER V. O’CONNOR-RATCLIFF 41
(i) First, on the record of this case, the Trustees’ decision
to block the Garniers from the designated public fora did not
advance a significant governmental interest. At trial, the
Trustees testified that they blocked the Garniers from their
social media pages because they believed that the Garniers’
repetitive comments had “a net effect of slightly pushing
down anything” that the Trustees posted to their pages and
tended “to just fill up the page” with irrelevant comments
and “visual clutter.” In its narrow tailoring analysis, the
district court concluded that blocking the Garniers
“promoted the legitimate interest of facilitating discussion
on [the Trustees’] social media pages.” Alternatively, the
district court analogized to our case law assessing the
application of rules at in-person local government meetings
to conclude that the Garniers’ comments were “disruptive”
because they were “unduly repetitious or largely irrelevant.”
See White v. City of Norwalk, 900 F.2d 1421, 1425–26 (9th
Cir. 1990). On appeal, the Trustees rely on the two
rationales cited by the district court to support their
contention that blocking the Garniers advanced a significant
governmental interest.
The record in this case does not support the Trustees’
contention that the Garniers’ comments actually disrupted
their pages or interfered with their ability to host discussion
on their pages. Again, Facebook automatically trims lengthy
comments, such as some of those left by the Garniers,
requiring viewers interested in reading those comments to
click a “See More” button to read beyond the first few lines
of text. Similarly, on Twitter, replies to a user’s Tweets are
not automatically visible; a viewer interested in reading
replies to a Tweet must click on a particular Tweet and scroll
to the replies to view them. And on either platform, viewers
of the Trustees’ social media pages can, with the flick of a
finger, simply scroll past repetitive or irrelevant comments.
42 GARNIER V. O’CONNOR-RATCLIFF
Indeed, no matter how many comments or reactions are left
in the interactive spaces underneath a Facebook post or a
Tweet, the content of the original post remains prominent
and unaffected; comments therefore do not, as the Trustees
assert, have the effect of “pushing down anything” that they
posted or meaningfully distracting from the “streamlined,
bulletin board” appearance they say they wanted for their
social media pages.
It is apparent that the Garniers’ repetitive comments
bothered the Trustees. But there is no evidence that the
repetitive comments “actually disturb[ed] or imped[ed]” the
Trustees’ posts or prevented other viewers of the Trustees’
accounts from engaging in discussion. Norse v. City of Santa
Cruz, 629 F.3d 966, 976 (9th Cir. 2010) (en banc).
Our cases governing the application of rules of decorum
at local government meetings are not to the contrary, as they
address a meaningfully different risk of disruption than the
risk presented by the Garniers’ comments. In physical city
hall meetings, where there is limited time and space
available for public remarks, lengthy, “irrelevant or
repetitious” comments “interfere with the rights of other
speakers” or prevent the government “from accomplishing
its business.” White, 900 F.2d at 1425–26. The only way to
keep unruly speakers from impeding the ability to hear out a
broad range of opinions from the public may be to cut off the
microphone or to eject the speaker from the room. See id.Accordingly, rules of decorum applied to limit disruption at
city council meetings “are not facially over-broad where
they only permit a presiding officer to eject an attendee for
actually disturbing or impeding a meeting.” Norse, 629 F.3d
at 976 (emphasis added); accord White, 900 F.2d at 1425–
26.
GARNIER V. O’CONNOR-RATCLIFF 43
In contrast to meetings in the physical world, the features
of Facebook and Twitter rendered the Garniers’ repetitive
comments only minimally distracting. The Garniers’
lengthier Facebook comments were automatically truncated,
and viewers of the Trustees’ pages could easily ignore their
comments on either platform by scrolling past them. For that
reason, the Garniers’ comments did not prevent the Trustees
“from accomplishing [their] business in a reasonably
efficient manner.” White, 900 F.2d at 1426. Nor did the
Garniers’ comments “interfere with the rights of other
speakers,” who remained free to ignore the Garniers’
comments and to leave their own. Id.“Actual disruption means actual disruption,” not
“constructive disruption, technical disruption, virtual
disruption, nunc pro tunc disruption, or imaginary
disruption.” Norse, 629 F.3d at 976. The Trustees’ concerns
about the “visual clutter” created by the Garniers’
comments, or the risk that their comments would upset the
“nice and streamlined” appearance of their pages, do not on
the present record amount to the kind of disruption that alone
can support the decision to block the Garniers.
In sum, the Trustees’ decision to block the Garniers did
not serve a significant governmental interest.
(ii) Even if the Garniers’ comments did interfere with the
Trustees’ interests in facilitating discussion or avoiding
disruption on their social media pages, the Trustees’ decision
to block the Garniers “burden[s] substantially more speech
than is necessary” and therefore is not narrowly tailored.
Ward, 491 U.S. at 799. Blocking the Garniers did not stop
them from leaving only long, repetitive comments. The
blocking prevented them from leaving any comments at all,
no matter how short, relevant, or non-duplicative they might
be. Further, O’Connor-Ratcliffe’s blocking of Christopher
44 GARNIER V. O’CONNOR-RATCLIFF
Garnier on Twitter prevented him from even viewing her
Tweets.
The overbreadth of the Trustees’ decision to block the
Garniers is particularly apparent on Facebook, where the
Trustees had at their disposal “easily available alternative
modes of regulation” that would have had “considerably less
impact on speech”—namely, the ability to delete or hide
unduly repetitive comments. Berger, 569 F.3d at 1043(quoting Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1041 (9th Cir. 2006)). The Trustees
did exactly that before blocking the Garniers. The Trustees
testified that deleting the Garniers’ comments took only a
few seconds. The easily available alternative of deleting
only repetitive comments rather than blocking the Garniers
entirely accomplished the same goal—avoiding potentially
disruptive repetitive posts—without eliminating the
Garniers’ ability to interact with the Trustees’ pages to the
extent they did so in an appropriate manner. 14
Alternatively, the Trustees could have established and
enforced clear rules of etiquette for public comments on their
pages, including rules against lengthy, repetitive, or off-topic
comments. Had the Trustees established such rules, it is
possible that the Garniers would not have continued to post
the same messages repeatedly, knowing that such comments
could lead to their being blocked from the page. But the
Trustees never established any rules of engagement with
their social media pages and so never determined whether
such rules would be an effective means of reducing
assertedly disruptive comments.
14
As noted above, Twitter began permitting users to hide replies to
their Tweets in 2019.
GARNIER V. O’CONNOR-RATCLIFF 45
Although the narrow tailoring requirement is “just
moderately stringent,” regulations of speech must “be
targeted at real problems, and carefully calibrated to solve
those problems.” Id. at 1059. In light of the minimal
disturbance caused by the Garniers’ comments and replies
and the alternative methods available to the Trustees to
address any such disturbances, we conclude that the
Trustees’ blocking of the Garniers on Twitter and on
Facebook was not narrowly tailored.
(iii) Nor is the Trustees’ decision to continue blocking
the Garniers after the Trustees began using Facebook’s word
filter feature to block all comments “reasonable in light of
the purpose served by the forum.” Hopper, 241 F.3d at 1075(quoting DiLoreto, 196 F.3d at 965). Whether a speech
restriction in a limited public forum is reasonable in light of
the forum’s purpose depends on “whether the limitation is
consistent with preserving the property for the purpose to
which it is dedicated,” in this case, as a space where the
Trustees can post content of their choice without any verbal
comments from the public. DiLoreto, 196 F.3d at 967.
Given their implementation of word filters, the Trustees’
continued ban of the Garniers serves no purpose at all
relating to the Garniers’ repetitive comments. The Trustees’
extensive word filters prevent the Garniers or anyone else
from commenting on their Facebook posts. The only impact
presently of blocking the Garniers is that it prevents them
from registering non-verbal emoticon reactions to the
Trustees’ posts. But the Trustees have not asserted any
interest in limiting non-verbal reactions. Nor does the record
provide any reason to believe the Garniers’ use of non-verbal
reactions, even repetitively, would disrupt or detract from
the Trustees’ pages or the content of their posts. Because
blocking the Garniers from their Facebook pages, in their
46 GARNIER V. O’CONNOR-RATCLIFF
present form, adds nothing to the Trustees’ goal of
eliminating comments on their posts, that restriction is not
“reasonable in light of the purpose served by the forum.”
Hopper, 241 F.3d at 1075 (quoting DiLoreto, 196 F.3d at
965).
At trial, O’Connor-Ratcliff suggested that even though
nobody can comment on her Facebook page any longer,
unblocking the Garniers would prevent her from changing
the way she uses her Facebook page—for instance, by
deciding at some future date “to have some back and forth
with my constituents.” But O’Connor-Ratcliff’s suggestion
that she might choose in the future to include more back and
forth with the public undermines her articulated rationale for
excluding the Garniers—that their comments detracted from
the streamlined, bulletin board functioning of her social
media pages. And, in any event, if the Trustees later decided
to open their Facebook pages to public comments again, they
would still be able to hide or delete unduly repetitious
comments or establish express rules of decorum prohibiting
such comments. Until that time, the Trustees’ speculative
concerns about future disruption are not a sufficient reason
to block the Garniers from interacting with their pages when
those pages now block all comments anyway. Again,
“[a]ctual disruption means actual disruption.” Norse, 629
F.3d at 976.
We conclude that the Trustees violated the Garniers’
First Amendment rights by blocking them from the Trustees’
social media accounts and that the district court was
therefore correct to grant the Garniers declaratory and
injunctive relief.
GARNIER V. O’CONNOR-RATCLIFF 47
D. Qualified Immunity
We need not dwell on the Garniers’ contention, on cross-
appeal, that the district court erred by granting qualified
immunity to the Trustees as to the Garniers’ damages claim.
The district court concluded that, at the time that the Trustees
blocked the Garniers, it was not clearly established that the
Garniers had a “First Amendment right to post comments on
a public official’s Facebook or Twitter page.” We agree.
“Qualified immunity shields federal and state officials
from money damages” unless the official violated a statutory
or constitutional right that “was ‘clearly established’ at the
time of the challenged conduct.” Ashcroft v. al-Kidd, 563
U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)). Until now, no Ninth Circuit or
Supreme Court authority definitively answered the state
action and First Amendment questions at issue in this case.
“[A]bsent controlling authority,” “a robust ‘consensus of
cases of persuasive authority’” can clearly establish law for
purposes of qualified immunity. Id. at 742 (quoting Wilson
v. Layne, 526 U.S. 603, 617 (1999)). But there was no such
consensus here. At the time the Trustees blocked the
Garniers from their pages in the fall of 2017, there were no
court of appeals cases addressing similar facts. Only in the
five years since the Trustees blocked the Garniers did four
circuits decide cases concerning the First Amendment’s
application to the decisions of government officials to block
members of the public from their government social media
accounts. As discussed, applying similar modes of analysis,
two of those circuits found First Amendment violations and
one did not, while one circuit applied a different mode of
analysis and found no violation. See supra Section II.B.2.
Whether or not those four cases (one vacated, see Biden v.
Knight First Amend. Inst. at Colum. Univ., 141 S. Ct. 122048 GARNIER V. O’CONNOR-RATCLIFF
(2021)), taken together, would constitute a sufficient
consensus for qualified immunity purposes, the contours of
the right asserted here were not at the time of the events in
question “‘sufficiently clear’ that every ‘reasonable official
would [have understood] that’” the actions taken violated
that right. al-Kidd, 563 U.S. at 741 (alteration in original)
(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
The Garniers attempt to avoid this conclusion by
describing the right at issue in this case extremely generally,
as the “right to criticize public officials” free from
retaliation. But the Supreme Court has exhorted us “not to
define clearly established law at a high level of generality.”
Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)
(quoting City & County of San Francisco v. Sheehan, 575
U.S. 600, 613 (2015)). Given the novelty of applying the
First Amendment and state action doctrines implicated here
to the burgeoning public fora of social media, we cannot say
that reasonable officials in the Trustees’ position were on
notice that blocking the Garniers from individual
government officials’ public social media pages could
violate the First Amendment.
E. Costs
Finally, the Trustees contend that the district court erred
by denying, without prejudice, their motion to retax costs.
We lack jurisdiction to address that question.
Following trial, the district court taxed costs in favor of
the Garniers. The district court then denied the Trustees’
motion to re-tax costs, noting that “[t]his case is currently on
appeal” and that “[t]he grounds for appeal implicate any
decision the Court would render on Defendants’ Motion to
Re-Tax Costs.” Accordingly, the district court denied the
GARNIER V. O’CONNOR-RATCLIFF 49
motion “without prejudice to Defendants’ refiling their
motion after the appeal has concluded.”
Under 28 U.S.C. § 1291, this Court “has jurisdiction to
hear appeals of ‘final decisions’ of the district court.” Reed
v. Lieurance, 863 F.3d 1196, 1212 (9th Cir. 2017) (quoting
Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir.
1999)). “A ruling is final for purposes of § 1291 if it (1) is a
full adjudication of the issues, and (2) clearly evidences the
judge’s intention that it be the court’s final act in the matter.”
Id. (quoting Elliott v. White Mountain Apache Tribal Ct.,
566 F.3d 842, 846 (9th Cir. 2009)). Consistently with those
criteria, where the district court denies a party’s motion for
attorney fees or costs “without prejudice to renewal, if
appropriate, following final disposition of all matters on
appeal,” we lack jurisdiction to review the district court’s
denial without prejudice. Id. at 1203, 1212–13.
As in Reed, the district court here denied the Trustees’
motion to re-tax costs without prejudice and “clearly
intended to revisit the question” following appeal. Id. at
1212. We therefore lack jurisdiction to review the district
court’s order denying the motion to re-tax costs. 15
III. CONCLUSION
The protections of the First Amendment apply no less to
the “vast democratic forums of the Internet” than they do to
Reed concerned an award of attorney fees, not costs as here. Reed,
15
however, turned not on the relief requested but on the conclusion that the
district court in that case, by denying the motion for fees without
prejudice, “made no ‘final decision’” and did not “clearly evidence[]” an
intention that its ruling “be the court’s final act in the matter.” 863 F.3d
at 1212 (first quoting Wakefield, 177 F.3d at 1160; and then quoting
Elliott, 566 F.3d at 846).
50 GARNIER V. O’CONNOR-RATCLIFF
the bulletin boards or town halls of the corporeal world.
Packingham, 137 S. Ct. at 1735 (quoting Reno, 521 U.S.
at 868). That is not to say that every social media account
created by public officials is subject to constitutional
scrutiny or that, having created a public forum online, public
officials are powerless to manage public interaction with
their profiles. As this case demonstrates, analogies between
physical public fora and the virtual public fora of the present
are sometimes imperfect, and courts applying First
Amendment protections to virtual spaces must be mindful of
the nuances of how those online fora function in practice.
Whatever those nuances, we have little doubt that social
media will continue to play an essential role in hosting public
debate and facilitating the free expression that lies at the
heart of the First Amendment. When state actors enter that
virtual world and invoke their government status to create a
forum for such expression, the First Amendment enters with
them.
AFFIRMED.