Two Poway Unified school board members violated the First Amendment rights of a married couple by blocking their comments on social media, a federal appeals court confirmed Wednesday.
But the Poway trustees — T.J. Zane and Michelle O’Connor-Ratcliff — might not have to pay damages.
That’s because a three-judge panel of the 9th U.S. Circuit Court of Appeals declined to decide on the “qualified immunity” granted them by San Diego federal Judge Roger T. Benitez.
Attorney Cory Briggs represented the couple — Christopher and Kimberly Garnier — who won their 2017 lawsuit after a two-day nonjury trial in September 2020.
In his own appeal, Briggs asked the San Francisco-based court to reverse Benitez’s ruling that the trustees were entitled to immunity afforded government officials and thus the Garniers are unable to recover what Briggs called “nominal money damages for the years of First Amendment violations they have endured.”
Writing for the panel, Judge Marsha S. Berzon, 77, said it lacked jurisdiction to review the Benitez order denying Briggs’ motion to retax [legal] costs.”
In March 2021, the Poway Unified School District said it had incurred more than $164,000 in legal costs defending the board members. The district — which was dropped from the original suit — didn’t respond to email requests for comment.
Neither did Briggs or attorneys for the board members.
In their 50-page decision, Judges Berzon, Richard C. Tallman, 69, and Michelle T. Friedland , 50, noted that the 9th Circuit had never before considered issues in this case — but that other circuits had.
“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,” the panel said.
But the panel said the trustees acted under color of state law by using their social media pages as public forums 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,” the panel said.
“We therefore affirm the district court judgment.”
O’Connor-Ratcliff of Rancho Peñasquitos, a business law professor, and Zane, also of Peñasquitos and a real-estate agent who once was executive director of the county Republican Party, won election to the PUSD Board of Trustees in November 2014.
“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,” the appeal court noted. “In 2016, O’Connor-Ratcliff also created a public Twitter page related to her activities as a PUSD trustee.”
The Garniers, notable for another court fight with Poway Unified and Kim’s failed run for school board in 2018, conceded that they spammed the social media of Zane and attorney O’Connor-Ratcliff but argued that federal law gave them the right to post comments on the trustees’ accounts.
Chris Garnier sent 226 tweets to O’Connor-Ratcliff over 10 minutes on Oct. 17, 2017, “sending each tweet as a reply to every tweet she ever posted,” Benitez said in his findings of fact. He also made the same comment on 42 O’Connor-Ratcliff Facebook posts.
The Garniers testified they repeated comments because they wanted to reach other Facebook users who might only look at one particular post.
“By repeating their message on each post, Plaintiffs reasoned, they would raise the issues that mattered to them involving PUSD to a broader audience,” the judge wrote.
Zane testified that the content of Chris’ Facebook posts were “not particularly” of any concern to him, Benitez wrote.
“Instead, Zane’s issue with Plaintiffs’ posts on his social media page was the alleged disruption and ‘spamming’ nature of the comments, which went against Zane’s intent to have the page “just be very streamlined” in a “bulletin board nature.”
Zane said at trial he never understood Chris’s decision to repeat comments beneath each post he made.
That led Thomas Joseph Zane — now a county GOP Central Committee member — to set up a filter that effectively blocked the Garniers from posting comments on his Facebook page.
Lawyers for Zane and O’Connor-Ratcliff argued that their blocking was “content-neutral” and narrowly tailored.
Benitez agreed to a point, but rejected the “bulletin board” argument.
He said blocking was initially permissible — like ejecting a disruptive citizen from a City Council meeting. But an unruly meeting-goer can’t be barred permanently.
“Only the fact that the blocking has gone on for three years requires the Court to intervene here,” he said.
Benitez suggested that the defendants adopt “content-neutral rules of decorum” such as reasonable limits on repeated posting of comments and include sanctions such as blocking for a limited period of time.
Judge Berzon, writing for the appeals court, said: “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.”
But both trustees occasionally solicited feedback from constituents through their posts or responded to constituent questions and comments, Berzon wrote.
O’Connor-Ratcliff and Zane argued that because they imposed word filters applying to all comments, the case was moot.
“Zane’s decision to unblock Kimberly Garnier from his Facebook page on the eve of trial does not moot her claim against him,” Berzon wrote.
Also: “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.’”
The three-judge panel heard arguments March 11 in Pasadena, with Briggs appearing virtually along with Jack M. Sleeth Jr., an attorney for the school board members. (Paul V. Carelli IV and Artiano Shinoff also represented the trustees, who didn’t respond to requests for comment.)
In its conclusion, the panel said:
The protections of the First Amendment apply no less to the ‘vast democratic forums of the Internet’ than they do to the bulletin boards or town halls of the corporeal world. … 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.