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. § 1983

when 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. 1220

48 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.