The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER GARNIER; Nos. 21-55118
KIMBERLY GARNIER, 21-55157
Plaintiffs-Appellees / D.C. No.
Cross-Appellants, 3:17-cv-02215-
BEN-JLB
v.
MICHELLE O'CONNOR- OPINION
RATCLIFF; T.J. ZANE,
Defendants-Appellants /
Cross-Appellees.
On Remand from the United States Supreme Court
Argued and Submitted January 17, 2025
Pasadena, California
Filed May 14, 2025
Before: Marsha S. Berzon, Richard C. Tallman, and
Michelle T. Friedland, Circuit Judges.
Opinion by Judge Berzon
2 GARNIER V. O’CONNOR-RATCLIFF
SUMMARY *
First Amendment/Social Media
On remand from the United States Supreme Court in an
action brought by parents of children attending Poway
Unified School District (“PUSD”) against two members of
the PUSD’s Board of Trustees alleging First Amendment
violations, the panel affirmed the district court’s bench trial
judgment against defendant Michelle O’Connor-Ratcliff and
remanded with instructions to dismiss as moot defendant T.J.
Zane from the case.
Defendants O’Connor-Ratcliff and Zane used their
public Facebook and Twitter pages to post about goings-on
at PUSD and their activities as Trustees. In response to
plaintiffs’ numerous critical and often repetitive comments
on defendants’ social media pages, defendants deleted or hid
plaintiffs’ comments and later blocked them from the
accounts. Plaintiffs brought suit pursuant to 42 U.S.C.
§ 1983, alleging First Amendment violations. The district
court granted judgment for the plaintiffs and this court
affirmed. The Supreme Court subsequently vacated this
court’s opinion and remanded for reconsideration in light of
the standard articulated in Lindke v. Freed, 601 U.S. 187
(2024), for determining when a public official’s social media
activity constitutes state action.
Under Lindke, a public official’s social media activity
constitutes state action for purposes of § 1983 “only if the
official (1) possess[es] actual authority to speak on the
*
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
State’s behalf, and (2) purport[s] to exercise that authority
when he [speaks] on social media.” Id. at 198. Applying
this standard, the panel held that O’Connor-Ratcliff acted
under color of state law in blocking plaintiffs from her social
media pages. First, California law and PUSD Board of
Education bylaws established that O’Connor-Ratcliff
possessed actual authority to speak on the State’s behalf.
Second, the appearance and function of O’Connor-Ratcliff’s
social media pages confirmed that she purported to exercise
that authority when she spoke on social media. For that
reason—as well as those articulated in the court’s earlier
opinion and not challenged in the Supreme Court—the panel
affirmed the district court’s judgment as to O’Connor-
Ratcliff.
Because defendant Zane was no longer a member of the
Board and the parties stated at oral argument that the case
was moot as to Zane, the panel remanded the claim against
Zane to the district court with instructions to dismiss him
from the case.
COUNSEL
Cory J. Briggs (argued), Briggs Law Corporation, Upland,
California, for Plaintiffs-Appellees.
Daniel R. Shinoff (argued), Jack M. Sleeth Jr., and Paul V.
Carelli IV, Artiano Shinoff, San Diego, California, for
Defendants-Appellants.
Katherine Fallow and Stephanie Krent, Knight First
Amendment Institute at Columbia University, New York,
New York; David Greene and Sophia Cope, Electronic
4 GARNIER V. O’CONNOR-RATCLIFF
Frontier Foundation, San Francisco, California; for Amici
Curiae Electronic Frontier Foundation and Knight First
Amendment Institute at Columbia University.
OPINION
BERZON, Circuit Judge:
Christopher and Kimberly Garnier brought this 42
U.S.C. § 1983 suit challenging the actions of Michelle
O’Connor-Ratcliff and T.J. Zane, members of the Poway
Unified School District (“PUSD” or “the District”) Board of
Trustees. O’Connor-Ratcliff and Zane (collectively referred
to as “the Trustees”) used their public Facebook and Twitter
pages to post about goings-on at PUSD and their activities
as Trustees. In response to the Garniers’ numerous critical
and often repetitive comments on the Trustees’ social media
pages, the Trustees deleted or hid the Garniers’ comments.
Later, the Trustees began blocking the Garniers from
interacting on their social media accounts altogether. The
Garniers brought suit under § 1983, alleging that the
Trustees’ actions violated the Garniers’ First Amendment
rights. Following a bench trial, the district court agreed with
the Garniers and awarded them declaratory and injunctive
relief. We affirmed that judgment, and the Trustees
appealed to the Supreme Court.
This case returns to our court following vacatur and
remand by the Supreme Court. See O’Connor-Ratcliff v.
Garnier, 601 U.S. 205, 208 (2024) (per curiam). In a related
case—Lindke v. Freed, 601 U.S. 187 (2024)—the Supreme
Court held that a public official’s social media activity
GARNIER V. O’CONNOR-RATCLIFF 5
constitutes state action for purposes of § 1983 “only if the
official (1) possessed actual authority to speak on the State’s
behalf, and (2) purported to exercise that authority when he
spoke on social media.” 601 U.S. at 198. The Court vacated
our previous judgment in this case because we had applied a
different standard than that articulated in Lindke to answer
whether the Trustees acted under color of state law.
O’Connor-Ratcliff, 601 U.S. at 208.
The substantive issue before us on remand is whether,
applying the standard set out in Lindke, the Trustees acted
under color of state law. We hold that O’Connor-Ratcliff
did, and that the case against Zane is moot.
I. BACKGROUND
We provided a full discussion of the facts of this dispute
in our earlier decision. See Garnier v. O’Connor-Ratcliff, 41
F.4th 1158, 1163–67 (9th Cir. 2022). Here is a summary:
The plaintiffs—Christopher and Kimberly Garnier—are
parents of children who attend school in the Poway Unified
School District. The defendants—Trustees O’Connor-
Ratcliff and Zane—are or, in the case of Zane, were
members of the PUSD Board of Trustees. Beginning during
their 2014 campaigns for election to the Board and
continuing through their time as Board members, the
Trustees maintained public social media pages on Facebook
and the site then known as Twitter. On those pages, the
Trustees informed constituents about activities at PUSD
schools and actions of the Board, invited the public to attend
Board meetings, and solicited input about Board decisions.
Starting sometime in 2015, the Garniers, dissatisfied
with the governance of PUSD schools, began frequently
posting comments critical of the Trustees and the Board on
6 GARNIER V. O’CONNOR-RATCLIFF
the Trustees’ social media pages. The Garniers sometimes
posted the same critical messages to the Trustees’ pages
repeatedly. For a time, the Trustees deleted or hid the
Garniers’ comments. But around October 2017, the Trustees
decided enough was enough. O’Connor-Ratcliff blocked
both Garniers from her Facebook page and blocked
Christopher Garnier from her Twitter page. Zane blocked
the Garniers from his Facebook page.
Displeased with being blocked, the Garniers filed a 42
U.S.C. § 1983 action against the Trustees and the District,
seeking damages as well as declaratory and injunctive
relief. 1 As relevant here, the Garniers alleged that the
Trustees’ social media pages constituted public fora and that,
by blocking them, the Trustees violated the Garniers’ First
Amendment rights.
At summary judgment, the district court granted the
Trustees qualified immunity as to the Garniers’ damages
claims. The district court also found that the Trustees acted
under color of state law for purposes of § 1983 and that their
social media pages were designated public fora. A two-day
bench trial followed, after which the district court
determined that the Trustees’ decision to block the Garniers
was content neutral and that, although the Trustees’ initial
decision to block the Garniers was narrowly tailored to the
goal of avoiding repetitive comments on the Trustees’ pages,
indefinitely blocking them was not. The district court
therefore found in favor of the Garniers on their § 1983
claim and entered an injunction ordering the Trustees to
unblock the Garniers from their Facebook and Twitter pages.
1
Following the District’s filing of a motion to dismiss, the Garniers
voluntarily dismissed the District from the case.
GARNIER V. O’CONNOR-RATCLIFF 7
The Trustees appealed the district court’s judgment. The
Garniers cross-appealed, arguing that the district court erred
in granting qualified immunity to the Trustees as to the
Garniers’ damages claims. In our earlier opinion, we
affirmed the judgment of the district court. Garnier, 41
F.4th at 1185. We held that the Trustees acted under color
of state law and violated the First Amendment in blocking
the Garniers. Id. at 1173, 1183. We also affirmed the district
court’s qualified immunity determination. Id. at 1184.
The Trustees appealed our state action determination to
the Supreme Court. After granting the Trustees’ petition for
a writ of certiorari and holding oral argument, the Supreme
Court decided Lindke, in which the Court announced a new
standard for determining when a public official’s social
media activity constitutes state action. 601 U.S. at 198. The
same day it issued the opinion in Lindke, the Court vacated
our earlier decision and remanded for proceedings consistent
with Lindke. O’Connor-Ratcliff, 601 U.S. at 208; see
Lindke, 601 U.S. 187. We ordered the parties to submit
supplemental briefing on the effect of Lindke on this case
and heard additional oral argument.
II. DISCUSSION
Given the complex procedural history of this case, it is
worth explaining at the outset what is and is not at stake here.
The Trustees sought and were granted a writ of certiorari
regarding only our determination that they “engage[d] in
state action subject to the First Amendment.” Petition for
Writ of Certiorari at i, O’Connor-Ratcliff, 601 U.S. 205 (No.
22-324). The Supreme Court vacated our earlier decision
because our state action analysis differed from that adopted
in Lindke and remanded for application of the Lindke
standard. O’Connor-Ratcliff, 601 U.S. at 208.
8 GARNIER V. O’CONNOR-RATCLIFF
Our earlier holding that the Trustees are entitled to
qualified immunity on the Garniers’ damages claim, which
the Garniers did not appeal, remains in effect. 2 See Garnier,
41 F.4th at 1183–84. Our holding that the Trustees violated
the First Amendment when they blocked the Garniers from
their social media pages is implicated only to the extent that
a determination that the Trustees did not act under color of
state law would mean that they could not have violated the
First Amendment. See, e.g., Prager Univ. v. Google LLC,
951 F.3d 991, 997–99 (9th Cir. 2020). So if we conclude (as
we do, see infra at 21–22) that there was state action, our
earlier substantive First Amendment holdings—that the
social media accounts constituted public fora and that the
decision to block the Garniers was not sufficiently tailored
to a significant government interest—also remain binding.
See Garnier, 41 F.4th at 1177–83.
A. Mootness
One relevant fact has changed since our earlier decision:
Zane is no longer a member of the Board following the end
of his term in December 2022. Both parties stated at oral
argument that the case is therefore moot as to Zane. Oral
Argument at 7:56, 28:19, Garnier v. O’Connor-Ratcliff, No.
21-55118 (Jan. 17, 2025),
https://www.youtube.com/watch?v=nsSM0bXCCRM. We
agree.
The basis of the Garniers’ § 1983 claim and of the
controversy between the parties was the Trustees’ status as
public officials. Zane’s departure from public office means
2
The same is true for our holding that we lack jurisdiction to address the
Trustees’ contention that the district court erred by denying without
prejudice their motion to retax costs. See Garnier, 41 F.4th at 1184–85.
GARNIER V. O’CONNOR-RATCLIFF 9
that he no longer has that status and therefore is not a state
actor in any respect. Nor is there any indication that Zane
intends to seek public office again. The Garniers’ claim
against him has therefore “los[t] its character as a present,
live controversy.” Siskiyou Reg’l Educ. Project v. U.S.
Forest Serv., 565 F.3d 545, 559 (9th Cir. 2009) (quoting
Earth Island Inst. v. U. S. Forest Serv., 442 F.3d 1147, 1157
(9th Cir. 2006)). We remand the claim against Zane to the
district court with instructions to dismiss the claim as moot.
B. State Action Under Lindke
In our earlier opinion we applied the “nexus test”
articulated in Naffe v. Frey, 789 F.3d 1030, 1036–38 (9th
Cir. 2015), to determine whether the Trustees’ use of their
social media pages qualified as state action under the
Fourteenth Amendment and so constituted action “under
color of state law” for purposes of § 1983. 3 See Garnier, 41
F.4th at 1170–73. We held that the Trustees acted under
color of state law because: (1) “the Trustees ‘purport[ed] . .
. to act in the performance of [their] official duties’ through
the use of their social media pages,” (2) “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,’” and (3) “the Trustees’ management
of their social media pages ‘related in some meaningful way’
to their ‘governmental status’ and ‘to the performance of
[their] duties.’” Id. at 1171 (alterations in original) (first
3
Because § 1983’s “under color of state law” requirement “tracks [the
‘state action’ requirement] of the Fourteenth Amendment,” Lindke, 601
U.S. at 194, we use those phrases interchangeably in this opinion.
10 GARNIER V. O’CONNOR-RATCLIFF
quoting Anderson v. Warner, 451 F.3d 1063, 1069 (9th Cir.
2006); and then quoting Naffe, 789 F.3d at 1037).
After granting certiorari in both this case and Lindke v.
Freed, 37 F.4th 1199 (6th Cir. 2022), the Supreme Court in
Lindke announced a new test for determining whether a
public official’s social media activity constitutes action
under color of state law for purposes § 1983. Lindke held
that “a public official’s social-media activity constitutes
state action under § 1983 only if the official (1) possessed
actual authority to speak on the State’s behalf, and
(2) purported to exercise that authority when he spoke on
social media.” 601 U.S. at 198. The Court remanded this
case for reconsideration in light of the standard articulated in
Lindke. O’Connor-Ratcliff, 601 U.S. at 208.
Considering O’Connor-Ratcliff’s social media activity
in light of Lindke’s two steps, we hold that O’Connor-
Ratcliff acted under color of state law in blocking the
Garniers from her social media pages. First, California law
and PUSD Board of Education bylaws establish that
O’Connor-Ratcliff “possessed actual authority to speak on
the State’s behalf.” See id. at 198. Second, the appearance
and function of O’Connor-Ratcliff’s social media pages
confirm that she “purported to exercise that authority when
[she] spoke on social media.” Id.
1. Lindke Step One
Regarding the first Lindke step, the Court explained that
it is not sufficient that an official presents herself as
possessing authority to speak on behalf of the state or
appears to the public to do so. Lindke, 601 U.S. at 199.
Instead, a public official’s social media activity is
“attributable to the State” only if the official is “possessed of
state authority” to speak on the state’s behalf. Id. (quoting
GARNIER V. O’CONNOR-RATCLIFF 11
Griffin v. Maryland, 378 U.S. 130, 135 (1964)).
Additionally, “[t]he alleged censorship” challenged as
unconstitutional “must be connected to speech on a matter
within [the official’s] bailiwick.” Id.
Lindke instructed that, to determine whether a public
official possesses authority to speak on behalf of the state,
courts are to look to the sources listed in § 1983: “statute,
ordinance, regulation, custom, or usage.” Id. at 200. The
first three sources refer to written law, whereas the latter two
include “‘persistent practices of state officials’ that are ‘so
permanent and well settled’ that they carry ‘the force of
law.’” Id. (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 167–68 (1970)). An official need only have authority
to speak for the state generally, not on social media
specifically. Id. Additionally, although the Court cautioned
against reliance on “excessively broad job descriptions,” the
Court recognized that state law may grant officials “broad
responsibility” over an area “that, in context, includes
authority to make official announcements on that subject.”
Id. at 201 (quoting Kennedy v. Bremerton Sch. Dist., 597
U.S. 507, 529 (2022)).
Consistent with Lindke and the text of § 1983, we begin
our analysis of O’Connor-Ratcliff’s authority to speak on
behalf of the state by examining the relevant “statute[s],
ordinance[s], regulation[s], custom[s], or usage[s].” Id. at
200. California law empowers school boards 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). PUSD Board bylaws describe
the role of individual board members in communicating such
information to the public. The bylaws “recognize[] that
electronic communication is an efficient and convenient way
for Board members to communicate and expedite the
12 GARNIER V. O’CONNOR-RATCLIFF
exchange of information within the district and with
members of the public.” Board Member Electronic
Communications, Board Bylaw 9012(a), Poway Unified
Sch. Dist. (adopted Aug. 9, 2018). 4 The bylaws also provide
“[e]xamples of permissible electronic communications
concerning district business,” including, but not limited to,
“dissemination of Board meeting agendas and agenda
packets, reports of activities from the Superintendent, and
reminders regarding meeting times, dates, and places.” Id.
The bylaws also designate the Board president as one of the
Board’s representatives who can communicate public
statements from the Board “regarding district issues” to
community members. Public Statements, Board Bylaw
9010(a), Poway Unified Sch. Dist. (adopted Aug. 9, 2018).
O’Connor-Ratcliff was serving as the Board president when
she blocked the Garniers from her social media pages.
The bylaws confirm O’Connor-Ratcliff’s authority to
speak on behalf of the District. Bylaws—written regulations
approved by the Board—are legitimate sources of authority
under Lindke. See Lindke, 601 U.S. at 200; Board Policies,
Board Bylaw 9310(b), Poway Unified Sch. Dist. (adopted
Aug. 9, 2018). Bylaw 9012’s recognition of the importance
of Board members’ communicating with the public
demonstrates that speaking to constituents was “part of the
job that the State entrusted [O’Connor-Ratcliff] to do.”
4
The currently available versions of the bylaws were amended in 2018,
some months after O’Connor-Ratcliff blocked the Garniers on social
media. The parties have jointly stipulated that the versions of the
applicable bylaws operative at the time O’Connor-Ratcliff made the
posts considered here and blocked the Garniers were substantially the
same as the 2018 versions. We therefore rely on the 2018 bylaws as
establishing the Board provisions controlling at the time of O’Connor-
Ratcliff’s challenged actions.
GARNIER V. O’CONNOR-RATCLIFF 13
Lindke, 601 U.S. at 201. At a minimum, Bylaw 9012
establishes that PUSD Board members are authorized to
communicate certain official, sanctioned information and
materials authored by the Board or the Superintendent, while
Bylaw 9010(a) indicates that O’Connor-Ratcliff, as the
Board president, is a person authorized to share information
with the community. Many of O’Connor-Ratcliff’s social
media posts included “permissible” content under Bylaw
9012, including posts alerting the public to Board meeting
times and agenda items. Further, there can be no question
that posts concerning official Board activities were within
O’Connor-Ratcliff’s “bailiwick” as a member of the Board
and Board president. See id. at 199. O’Connor-Ratcliff
therefore possessed actual authority to speak on behalf of the
state.
O’Connor-Ratcliff makes several arguments for why she
lacks authority to speak for the District. First, she maintains
that school board members do not possess individual
authority to speak on behalf of the state because California
law limits official acts of school boards to those approved by
a majority vote at a properly scheduled school meeting. We
rejected a similar argument in our earlier decision. See
Garnier, 41 F.4th at 1173. Although Lindke announced a
new standard for state action in cases concerning social
media activity, O’Connor-Ratcliff’s argument on this point
remains unconvincing. As we explained in our previous
opinion, “the duties of elected representatives extend beyond
‘participating in debates and voting.’” Id. (quoting Williams
v. United States, 71 F.3d 502, 507 (5th Cir. 1995)).
Furthermore, Lindke instructs that the crucial inquiry is
“whether making official announcements is actually part of
the job that the State entrusted the official to do.” 601 U.S.
at 201. Because the Board bylaws demonstrate that
14 GARNIER V. O’CONNOR-RATCLIFF
O’Connor-Ratcliff’s authority “in context, include[d]
authority to make official announcements” regarding PUSD
Board of Education activities, Lindke’s first step is satisfied.
Id.
Second, O’Connor-Ratcliff points to a PUSD
administrative regulation concerning “district-sponsored
social media” as establishing that she did not have authority
to speak on behalf of the state. That regulation defines an
“[o]fficial district social media platform” as “a site
authorized by the Superintendent or designee” and states that
“[s]ites that have not been authorized by the Superintendent
or designee . . . are not considered official district social
media platforms.” District-Sponsored Social Media,
Administrative Regulation 1114(a), Poway Unified Sch.
Dist. (approved Oct. 12, 2017).
There is no evidence that O’Connor-Ratcliff’s social
media pages were so authorized. But that does not mean that
O’Connor-Ratcliff lacked authority to speak on behalf of the
District. The focus at Lindke’s first step is on the authority
of the individual official, not the official character of the
social media account through which they speak; Lindke
recognized the possibility that public officials may at times
make official announcements on unofficial, and even
otherwise exclusively personal, social media accounts. See
601 U.S. at 202–03, 202 n.2. So O’Connor-Ratcliff’s
exercise of her authority to speak on behalf of the District
can constitute state action even if it happened on social
media pages that are not “official district social media
platforms” as defined by PUSD. District-Sponsored Social
Media, Administrative Regulation 1114(a), Poway Unified
Sch. Dist. (adopted Oct. 12, 2017).
GARNIER V. O’CONNOR-RATCLIFF 15
Lastly, O’Connor-Ratcliff argues that she lacked
authority to speak on behalf of the state because she created
her social media pages as campaign sites before taking office
and the District never “convert[ed]” them to official
channels of communication. That argument fails for similar
reasons to those that undermine the relevance of her
observation that her social media pages were not authorized
by the District. Lindke’s concern with actual authority is
satisfied by the fact that the District authorized O’Connor-
Ratcliff to speak on its behalf. There is no requirement that
for an official’s use of her social media pages to constitute
state action, the state must sanction or control those pages.
In fact, an official’s authority to speak on behalf of the state
may extend to social media even where the relevant state or
local law does not contemplate social media at all. Lindke,
601 U.S. at 200. To the extent that O’Connor-Ratcliff’s
social media pages maintained the “appearance and
function” of campaign pages after her election, that fact is
relevant to the second step of Lindke, not the first. See id. at
198.
In sum, PUSD Board bylaws establish that O’Connor-
Ratcliff possessed actual authority to speak on behalf of the
state, satisfying Lindke’s first prong.
2. Lindke Step Two
Lindke’s second step hinges on whether a public official
“use[s] his speech in furtherance of his official
responsibilities” or “invoke[s] his official authority” when
speaking on social media. Id. at 201–02. Relevant to this
determination is the “appearance and function” of a public
official’s social media activity. Id. at 198.
16 GARNIER V. O’CONNOR-RATCLIFF
The Court in Lindke offered a useful “hypothetical from
the offline world” to help identify when an official purports
to speak on behalf of the state:
A school board president announces at a
school board meeting that the board has lifted
pandemic-era restrictions on public schools.
The next evening, at a backyard barbecue
with friends whose children attend public
schools, he shares that the board has lifted the
pandemic-era restrictions. The former is
state action taken in his official capacity as
school board president; the latter is private
action taken in his personal capacity as a
friend and neighbor. While the substance of
the announcement is the same, the context—
an official meeting versus a private event—
differs. He invoked his official authority
only when he acted as school board president.
601 U.S. at 201–02.
Translating this physical-world hypothetical to the world
of social media, Lindke explained that some social media
accounts are like the barbecue: where an account carries a
label that it is a personal account or a disclaimer identifying
the page’s content as reflecting only the official’s personal
views, a public official is “entitled to a heavy (though not
irrebuttable) presumption that all of the posts on [that] page
were personal.” Id. at 202. On the other hand, some
accounts function like the school meeting. For example,
where an account “belongs to a political subdivision . . . or
is passed down to whomever occupies a particular office,” it
may be “clear that a social-media account purports to speak
GARNIER V. O’CONNOR-RATCLIFF 17
for the government.” Id. at 202. Where an account is
personal or official then, Lindke’s second step can generally
be answered at the account level. See id.
In contrast, where an account is “mixed use”—meaning
the account includes posts made in both a personal and
official capacity—courts may need to engage in a further
inquiry to determine whether specific posts’ “content and
function” indicate that the official was exercising their
authority to speak on behalf of the state. Id. at 202–03.
Indicators that an official is exercising official authority in a
post include, but are not limited to, the explicit invocation of
state authority, a post’s legal effect, the fact that a post shares
official information not otherwise publicly available, and the
use of government staff to make a post. Id. at 203.
Lindke further explained that for mixed-use accounts, the
specific action taken by the official can affect the analysis.
If an official deletes comments from a post or posts, the
“only relevant posts” for state action purposes “are those
from which [the plaintiff’s] comments were removed,” so a
post-by-post analysis is required. Id. at 204. On the other
hand, if an official blocks an individual from a page
altogether, then the existence of any post made in an official
capacity on which the individual wished to comment would
render the blocking state action. Id.
Overall, then, Lindke’s second step asks whether a public
official “purported to exercise” their “authority to speak on
the State’s behalf” when they “spoke on social media.” 601
U.S. at 198. Although decided before the Supreme Court
articulated the Lindke standard, our previous opinion
conducted a nearly identical inquiry. We held that the
Trustees, including O’Connor-Ratcliff, “‘purport[ed] . . . to
act in the performance of [their] official duties’ through the
18 GARNIER V. O’CONNOR-RATCLIFF
use of their social media pages.” Garnier, 41 F.4th at 1171
(alterations in original) (quoting Anderson, 451 F.3d at
1069). Considering O’Connor-Ratcliff’s social media
activity again in light of the guidance provided by Lindke,
we reaffirm our earlier holding that she purported to act
pursuant to her official authority when she spoke on social
media for the following reasons.
Under Lindke, the first question is what category
O’Connor-Ratcliff’s accounts fall into: are they personal,
official, or somewhere in between? Based on their
appearance and content, O’Connor-Ratcliff’s Facebook and
Twitter accounts most closely resemble official accounts.
See id. at 198, 201–02. Although the accounts bore her name
rather than that of the PUSD Board or her office, O’Connor-
Ratcliff identified herself on both pages as the president of
the PUSD Board of Education. That title appeared in the
“About” section of O’Connor-Ratcliff’s Facebook page and
directly under her name on her Twitter page, making it
immediately visible to anyone who visited her Twitter
account. On Facebook, O’Connor-Ratcliff also identified
herself as a “Government Official” at the top of her “Home”
page and provided her official PUSD email address as a
means of contact. Further, neither account included a
disclaimer that the pages or posts were intended to be
personal. In fact, O’Connor-Ratcliff maintained a separate,
private Facebook account for engaging with her family and
friends in her personal capacity—a digital “barbecue” where
she spoke as a relative, friend, and neighbor. In all, then, the
presentation of the social media accounts from which the
Garniers were blocked signaled that they were clothed in the
authority of O’Connor-Ratcliff’s office.
The content of O’Connor-Ratcliff’s social media pages
confirms their official nature. As we observed in our
GARNIER V. O’CONNOR-RATCLIFF 19
previous opinion, O’Connor-Ratcliff’s posts were
“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.” Garnier, 41 F.4th at 1171 (alterations
in original) (quoting Davison v. Randall, 912 F.3d 666, 680
(4th Cir. 2019)). Screenshots of O’Connor-Ratcliff’s
Facebook and Twitter feeds show them to be almost
exclusively dedicated to posts about PUSD schools and
Board of Education activities. Further, as we stated in our
earlier opinion, O’Connor-Ratcliff’s posts did not
“advertis[e] ‘campaign promises’ kept or tout[] [her] own
political achievements” but instead “concerned official
District business or promoted the District generally.” Id. at
1172. Accordingly, after her election to the PUSD Board,
O’Connor-Ratcliff maintained the social media pages here at
issue not in her personal capacity or as a political candidate
but as a PUSD official.
O’Connor-Ratcliff’s labelling and use of her social
media pages distinguishes them not only from personal
accounts but also from mixed-use accounts, like that at issue
in Lindke. In the same “About” section in which O’Connor-
Ratcliff described herself as “Board of Education, President,
Poway Unified School District,” the Facebook page in
Lindke included the description “Daddy to Lucy, Husband to
Jessie and City Manager, Chief Administrative Officer for
the Citizens of Port Huron, MI.” Lindke, 601 U.S. at 192.
The difference between the two self-descriptions—one
strictly official, the other a mix of personal and official—is
replicated in the content of the pages. Whereas O’Connor-
Ratcliff used her pages to post almost exclusively about
PUSD activities and Board announcements, the official in
20 GARNIER V. O’CONNOR-RATCLIFF
Lindke posted “prolifically (and primarily) about his
personal life.” Id. at 192, 202.
Even if we were to consider O’Connor-Ratcliff’s pages
to be “mixed use,” Lindke’s second step would be satisfied.
When considering posts on a mixed-use page, we look to
each post’s “content and function” to determine whether it
was made in an official capacity. Id. at 203. Pertinent
factors to that determination include whether the relevant
post invokes state authority, has immediate legal effect,
contains information not available elsewhere, or was posted
using government staff or resources. Id. The ultimate
inquiry here is whether O’Connor-Ratcliff “purport[ed] to
exercise the power of [her] office” via posting on social
media. Id. Because the Garniers’ only remaining claim
concerns O’Connor-Ratcliff’s page-wide blocking of them
from her social media accounts, Lindke requires that
O’Connor-Ratcliff purported to exercise her official
authority with respect to only a single post on those accounts
on which the Garniers wished to comment but could not do
so. See id. at 204. That requirement is met here.
Two related posts from O’Connor-Ratcliff’s Facebook
page show how she used her social media accounts to make
official statements. In July 2016, O’Connor-Ratcliff used
her Facebook page to announce the Board’s decision to
terminate the employment of the PUSD superintendent. In
February 2017, O’Connor-Ratcliff posted on her Facebook
page to announce the Board’s selection of a new
superintendent. In that post, she invited the public to “join
the Board in welcoming [the superintendent] into [the
PUSD] community.” There is no evidence that either post
was made using PUSD staff or resources. But consideration
of Lindke’s other factors confirms the posts’ official
character. The first announcement preceded the statement
GARNIER V. O’CONNOR-RATCLIFF 21
on the superintendent’s firing published by the District and
thus alerted the public to information that was not otherwise
available. See id. at 203. The second post was an official
announcement involving the invocation of O’Connor-
Ratcliff’s position. See id. Both posts “ma[de] clear” that
O’Connor-Ratcliff was “purporting to discharge an official
duty.” See id. Furthermore, posts concerning the status of
the superintendent were just the sort of posts on which the
Garniers wished to comment. See id. at 204. Before being
blocked from O’Connor-Ratcliff’s pages, the Garniers
frequently complained about and called for the resignation
of the superintendent whose firing and replacement
O’Connor-Ratcliff announced.
O’Connor-Ratcliff used social media to carry out the
duties of her office in other posts as well. Consistent with
the “permissible electronic communications concerning
district business” listed in the bylaws, O’Connor-Ratcliff
regularly posted Board meeting dates, times, and agenda
packets on both Facebook and Twitter. In other posts, she
invited constituents to complete surveys related to district
budgetary planning and the superintendent hiring process.
Of course, “an official does not necessarily purport to
exercise [her] authority simply by posting about a matter”
within that authority. Id. at 203. But O’Connor-Ratcliff’s
posts here not only included announcements that she was
explicitly empowered to make but also appeared on pages
labelled as belonging to an official member of the PUSD
Board. Because O’Connor-Ratcliff designated her social
media pages as official in both appearance and function,
Lindke’s second step is satisfied: O’Connor-Ratcliff
purported to exercise her authority to speak on behalf of the
state when she posted on social media. She therefore acted
22 GARNIER V. O’CONNOR-RATCLIFF
under color of state law when she blocked the Garniers from
her social media accounts.
We emphasize that public officials assuredly do have the
right to speak on public affairs, including issues related to
their official duties, in their personal capacity. As the
Supreme Court advised in Lindke, public officials can limit
the risk of liability for personal speech on social media by,
for instance, “keep[ing] personal posts in a clearly
designated personal account,” including a disclaimer, or
refraining from labelling their personal pages as official
means of communication. Id. at 202–04.
CONCLUSION
We hold that O’Connor-Ratcliff’s blocking of the
Garniers on her social media accounts constituted state
action under Lindke. For that reason—as well as those
articulated in our earlier opinion and not challenged in the
Supreme Court—we affirm the judgment of the district court
as to O’Connor-Ratcliff. Because Zane is no longer a public
official, we remand the claim against him to the district court
with instructions to dismiss him from the case as moot.
AFFIRMED in part and REMANDED in part.