OAPL 2024

The California School Boards Association’s (CSBA) Education Legal Alliance (ELA) and Fagen Friedman & Fulfrost LLP (F3 Law) team filed an amicus curiae brief with the Supreme Court of the United States in O’Connor-Ratcliff v. Garnier [601 U.S. 205 (2024)]. The team advocated for clarity around when government officials can and cannot block unwelcome content on their social media pages. Until this point, there was confusion around whether a public official engaged in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, which the official uses to communicate about job-related matters with the public, and the impact on government work.

On March 15, 2024, the Supreme Court of the United States issued a decision in O’Connor-Ratcliff v. Garnier, vacating the Ninth Circuit’s judgment and remanding the case in light of Lindke v. Freed, 601 U.S. (2024) . The Lindke ruling impacts a school board member’s ability to control their social media pages. The case marks a departure from the previous Ninth Circuit Court of Appeal ruling and sets forth a new framework upon which school board members should abide in managing their social media accounts.

In the Lindke ruling, the Court clarified that only when school board members are acting as state actors and within their official duties, are they limited in their ability to block unwelcome content on their social media pages. The ruling provided guidance on how to determine whether a school board member, or any government official, is engaged in state action or is functioning as a private citizen online. Specifically, a public official’s social-media activity constitutes state action only if the official:

1.      possessed actual authority to speak on the State’s behalf; and

2.      purported to exercise that authority when they spoke on social media.

The Lindke opinion authored by Justice Amy Coney Barrett referenced that the inclusion of a disclaimer on a social media page can serve as a clear indication of the personal nature of an account. The idea to include a disclaimer was in the brief submitted by the ELA and F3 Law.

While the case had its origins in an educational context, the decision potentially impacts all government officials, offering guidance on how to maintain the distinction between their public roles and personal lives on social media platforms.

CSBA’s ELA and F3 Law’s efforts have not only safeguarded the constitutional rights of government officials but have contributed to the Court providing clarity on the appropriate use of social media in the public sector.

The CSBA team comprised Keith Bray, Kristin Lindgren-Bruzzone, and Dana Scott. The F3 Law team included Peter Fagen, Christopher Keeler, Gretchen Shipley, and Lynn Beekman.