Okay, I’ll stop shouting.  That was totally inappropriate for a Monday morning.

I was inspired because this week we will be discussing some interesting First Amendment cases and we may even bring back Toolbox Tuesday … temporarily!

First off, let’s consider whether banning citizens from posting on a school district’s Facebook page violates the First Amendment.  As one court said recently, the case law on this issue “is hardly a model of clarity.”

In this California case, Garnier v. Poway Unified School District, Dkt. No. 17-CV-2215-W(JLB) (S.D. Cal. May 24, 2018), two citizens sued on First Amendment grounds after board members blocked them from posting on the board members’ official Facebook and Twitter accounts.  The board members blocked the citizens after they posted negative comments about school district matters.

The board members sought dismissal of the suit, but the trial court let the case proceed.  The court first determined that government officials may be sued in their individual capacities for alleged constitutional violations if they were acting under color of state law.

According to the board members, they weren’t acting under color of state law, but merely posting on their personal social media accounts.  The trial court disagreed, citing a similar case in which a county resident sued the chairperson of the county board of supervisors for blocking the resident from the chairperson’s personal Facebook page.  That court ruled that the resident had alleged a valid claim.  This was the key consideration:

The chairperson’s actions in blocking the resident from posting on her Facebook page arose out of public, not personal, circumstances and the chairperson used the Facebook page for her public business.  For example, the chairperson asked constituents to visit her Facebook page and, after taking office, used the page as a “tool for governance.”     

The court in the Garnier case, thus, distinguished a personal Facebook page from one that is maintained to communicate with the public about official school district matters.  For example, one of the accounts said it was the “official page” for the board member to promote public and political information.  His account had a picture of a school district sign and listed his interests as “being accessible and accountable; retaining quality teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety.”  The suit claimed that the other board member’s Facebook account included a “Political Info” section, identified her as a board member for the school district, and also identified her as a “Government Official.”

According to the trial court, these allegations were sufficient to overcome the board members’ motion to dismiss.  The court stated that it was “reasonable to infer” that the board members “used their private social media accounts as a tool for governance.”  As a result, the suit adequately alleged that the board members acted under color of law when they blocked the citizens from posting messages on their Facebook and Twitter accounts.  The trial court allowed the case to proceed.

There are several insightful cases in the same vein as the Garnier case.  One is Davison v. Loudoun County Board of Supervisors, 267 F.Supp.3d 702 (E.D. Va. 2017), brought by Brian C. Davison against the chair of the county board of supervisors who blocked him from her official social media pages.  The court found a First Amendment violation for engaging in viewpoint discrimination.  That case is currently on appeal to the Fourth Circuit Court of Appeals.  The very same Brian C. Davison also sued the school district where his children attend school and several board members in Davison v. Rose, Dkt. No. 1:16cv0540 (July 28, 2017), for blocking him from official social media websites and issuing him a trespass warning.  The court in that case, however, dismissed the suit and granted the individual board members qualified immunity, because the law is not “clearly established” on these issues.

The law in this area is emerging.  As these cases make their way through the appellate courts, they may soon open the door for similar challenges.  Keep in mind, too, that these board members were sued in their “individual capacities,” which may mean personal liability if a judge or jury finds a constitutional violation.


 Tomorrow:  My effort at Toolbox Tuesday!!