Petition for Writ of Certiorari — Michelle O’Connor-Ratcliff, et al., Petitioners v. Christopher Garnier, et ux.

Supreme Court briefOct 4, 2022

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No. 22-___

In the Supreme Court of the United States

MICHELLE O’CONNOR-RATCLIFF AND T.J. ZANE,

Petitioners,

CHRISTOPHER GARNIER AND KIMBERLY GARNIER,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL R. SHINOFF

JACK M. SLEETH JR.

ARTIANO SHINOFF

3636 Fourth Ave.

Suite 200

San Diego, CA 92103

HASHIM M. MOOPPAN

Counsel of Record

MEGAN LACY OWEN

JONES DAY

51 Louisiana Ave., NW

Washington, DC 20001

(202) 879-3939

hmmooppan@jonesday.com

Counsel for Petitioners

QUESTION PRESENTED

Whether a public official engages in state action

subject to the First Amendment by blocking an

individual from the official’s personal social-media

account, when the official uses the account to feature

their job and communicate about job-related matters

with the public, but does not do so pursuant to any

governmental authority or duty.

PARTIES TO THE PROCEEDING

Petitioners Michelle O’Connor-Ratcliff and T.J.

Zane were Defendants in the district court and

Appellants and Cross-Appellees in the court of

appeals.

Respondents Christopher Garnier and Kimberly

Garnier were Plaintiffs in the district court and

Appellees and Cross-Appellants in the court of

appeals.

STATEMENT OF RELATED PROCEEDINGS

United States District Court for the Southern District

of California:

Christopher Garnier & Kimberly Garnier v.

Michelle O’Connor-Ratcliff & T.J. Zane, No.

3:17-cv-00215-BEN-JLB (order granting in part

and denying in part defendants’ motion for

summary judgment, Sept. 26, 2019; findings of

fact and conclusions of law entered following

bench trial, Jan. 14, 2021; order entering

judgment, Jan. 15, 2021).

United States Court of Appeals for the Ninth Circuit:

Christopher Garnier & Kimberly Garnier v.

Michelle O’Connor-Ratcliff & T.J. Zane, Nos.

21-55118, 21-55157 (affirming, July 27, 2022).

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

STATEMENT OF RELATED PROCEEDINGS ........ ii

TABLE OF AUTHORITIES ....................................... v

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED .................................. 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE ................................... 5

REASONS FOR GRANTING THE PETITION....... 12

THE DECISION BELOW PRESENTS AN

ACKNOWLEDGED CIRCUIT SPLIT ON

WHETHER PUBLIC OFFICIALS ENGAGE IN

STATE ACTION WHEN BLOCKING

INDIVIDUALS FROM THEIR PERSONAL

SOCIAL-MEDIA ACCOUNTS ................................... 12

A. The Authority-Or-Duty Test Adopted

By The Sixth Circuit .................................... 12

B. The Appearance-And-Purpose Inquiry

Applied By The Ninth, Second, Fourth,

And Eighth Circuits..................................... 16

II. THE NINTH CIRCUIT’S STATE-ACTION

HOLDING IS ERRONEOUS AND IMPORTANT .......... 18

A. State Action Is Absent Where A

Public Official Does Not Rely On Any

State Authority Or Carry Out Any

State Duty In Operating SocialMedia Pages ................................................. 19

B. The Ninth Circuit’s Consideration

Of Appearances And Purposes

In This Context Is Misguided

and Unworkable .......................................... 26

III. THIS CASE IS AN IDEAL VEHICLE TO

RESOLVE THE QUESTION PRESENTED.................. 33

CONCLUSION ......................................................... 34

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit

(July 27, 2022) .................................................... 1a

APPENDIX B: Opinion of the United States

District Court for the Southern District of

California (Jan. 14, 2021) ................................ 55a

APPENDIX C: Opinion of the United States

District Court for the Southern District of

California (Sept. 26, 2019) ............................... 98a

APPENDIX D: Constitutional and Statutory

Provisions ....................................................... 129a

TABLE OF AUTHORITIES

Page(s)

CASES

American Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40 (1999) ................................ 3, 20, 22, 27

Biden v. Knight First Amend. Inst.,

141 S. Ct. 1220 (2021) .......................................... 17

Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n,

531 U.S. 288 (2001) ...................... 19, 20, 23, 27, 31

Buentello v. Boebert,

545 F. Supp. 3d 912 (D. Colo. 2021) .................... 33

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021) ................... 17, 18, 28,

30, 31, 32

Charudattan v. Darnell,

510 F. Supp. 3d 1101

(N.D. Fla. 2020) .................................................... 34

Czosnyka v. Gardiner,

No. 21-3240, 2022 WL 407651

(N.D. Ill. Feb. 10, 2022) ........................................ 33

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019) .................... 16, 17, 18

Garcetti v. Ceballos,

547 U.S. 410 (2006) ........................ 4, 25, 26, 30, 31

Knight First Amend. Inst. v. Trump,

953 F.3d 216 (2d Cir. 2020)........... 4, 17, 18, 24, 25,

26, 28, 30, 33

Knight First Amend. Inst. v. Trump,

928 F.3d 226 (2d Cir. 2019).................................. 17

Lindke v. Freed,

37 F.4th 1199 (6th Cir. 2022) ....... 3, 12, 13, 14, 15,

16, 18, 23, 25,

27, 28, 29, 31, 33

Lugar v. Edmonson Oil Co.,

457 U.S. 922 (1982) .................................. 19, 20, 23

Manhattan Cmty. Access

Corp. v. Halleck,

139 S. Ct. 1921 (2021) ..................... 3, 4, 19, 20, 22,

23, 25, 27, 32, 33

Moose Lodge No. 107 v. Irvis,

407 U.S. 163 (1972) .............................................. 31

National Inst. of Fam. & Life

Advocates v. Becerra,

138 S. Ct. 2361 (2018) .......................................... 29

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ............................................ 4

Riley v. National Fed’n of Blind

of N.C., Inc.,

487 U.S. 781 (1988) .............................................. 29

Screws v. United States,

325 U.S. 91 (1945) .............................. 21, 22, 27, 28

Van Orden v. Perry,

545 U.S. 677 (2005) .............................................. 30

West v. Atkins,

487 U.S. 42 (1988) ...................................... 3, 21, 22

vii

CONSTITUTIONAL AND STATUTORY AUTHORITIES

U.S. Const. amend. I ................................................... 1

U.S. Const. amend. XIV .............................................. 1

28 U.S.C. § 1254 .......................................................... 1

42 U.S.C. § 1983 ................................................ 1, 7, 20

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit (Pet.App. 1a-54a) is reported at

41 F.4th 1158. The opinion of the United States

District Court for the Southern District of California

making findings of fact and conclusions of law after a

bench trial (Pet.App. 55a-97a) is reported at 513 F.

Supp. 3d 1229.

The district court’s summaryjudgment opinion (Pet.App. 98a-128a) is unreported.

JURISDICTION

The Ninth Circuit issued its judgment on July 27,

2022. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The appendix reproduces relevant provisions of the

First Amendment, U.S. Const. amend. I, the

Fourteenth Amendment, U.S. Const. amend. XIV,

and the Civil Rights Act of 1871 as amended,

42 U.S.C. § 1983.

INTRODUCTION

Petitioners, two elected members of the Poway

Unified School District Board of Trustees, used

personal Facebook and Twitter accounts to

communicate with the public about their jobs and the

District. Respondents, parents of children attending

schools in the District, spammed Petitioners’ posts

and tweets with repetitive comments and replies. So

Petitioners blocked Respondents from the accounts.

In using the accounts and blocking Respondents,

Petitioners were neither relying on any governmental

authority nor carrying out any governmental duty. It

is undisputed that the accounts were created and

maintained by Petitioners without any direction,

funding, support, or other involvement by the

District. Nevertheless, the Ninth Circuit held that

Petitioners’ blocking of Respondents was state action

that violated the First Amendment.

The court

reasoned that Petitioners had “us[ed] their social

media pages as public fora” because “they clothed

their pages in the authority of their offices and used

their pages to communicate about their official

duties.” Pet.App. 6a, 26a. The court emphasized

“appearance and content”: the accounts prominently

featured Petitioners’ “official titles” and “contact

information” and predominantly addressed matters

“relevant to Board decisions.” Pet.App. 22a-23a. In

short, the court treated Petitioners’ personal socialmedia pages as an exercise of apparent authority

related to their duties. Pet.App. 25a-26a.

The Ninth Circuit’s holding deepened a recent and

acknowledged circuit split. Earlier this year, the

Sixth Circuit held that a city manager “didn’t

transform his personal Facebook page into official

action by posting about his job,” even though his page

likewise addressed city policies and featured his

official title and contact information. Lindke v.

Freed, 37 F.4th 1199, 1201, 1207 (6th Cir. 2022).

“Instead of examining [the] page’s appearance or

purpose,” the Sixth Circuit explained that the proper

state-action inquiry “focus[es] on the actor’s official

duties and use of government [authority]” (or lack

thereof). Id. at 1206. The Sixth Circuit “part[ed]

ways with other circuits’ approach,” id. (citing cases

from the Second, Fourth, and Eighth Circuits);

conversely, the Ninth Circuit “decline[d] to follow”

the Sixth Circuit’s “different analysis,” instead

“follow[ing] the mode of analysis of the Second,

Fourth, and Eighth Circuits,” Pet.App. 35a-36a.

The Ninth Circuit’s approach is irreconcilable with

this Court’s precedents. “[W]hen a private entity

provides a forum for speech, the private entity is not

ordinarily constrained by the First Amendment

because the private entity is not a state actor.”

Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct.

1921, 1930 (2021). That is equally the case for

individuals who make the private decision to use

their personal social-media accounts to communicate

with the public about their jobs as public officials.

Neither the operation of such accounts nor the

blocking of unwanted commenters involves “the

exercise of [any] right or privilege created by the

State,” American Mfrs. Mut. Ins. Co. v. Sullivan, 526

U.S. 40, 50 (1999), let alone an exercise “made

possible only because the [official] is clothed with the

authority of state law,” West v. Atkins, 487 U.S. 42,

49 (1988). Instead, “citizen[s] who work[] for the

government” have a constitutionally protected right

to “speak[] as citizens about matters of public

concern.” Garcetti v. Ceballos, 547 U.S. 410, 419

(2006). Regardless of whether social-media platforms

may be considered a type of “modern public square,”

Packingham v. North Carolina, 137 S. Ct. 1730, 1737

(2017), a public official’s personal account is nothing

of the sort when operated independent of the

government’s direction or authorization. It is the

internet equivalent of “an official giv[ing] remarks” at

her own private property and generally “allow[ing]

for participation” by members of the public who wish

to attend—which “would not require opening the

floor” to those whom she specially chooses to bar from

entering. See Knight First Amend. Inst. v. Trump,

953 F.3d 216, 229 (2d Cir. 2020) (Park, J., dissenting

from denial of rehearing en banc).

The Ninth Circuit’s error is also exceptionally

important. “[I]t is now commonplace for politicians to

use personal accounts to promote their official

activities.” Id. at 230. The Ninth Circuit’s stateaction ruling “will have the unintended consequence

of creating less speech if the social-media pages of

public officials are overrun with harassment, trolling,

and hate speech, which officials will be powerless to

filter.” Id. at 231. That perverse result exemplifies

this Court’s admonition that breaching the “critical

boundary between the government and the

individual” enforced by the state-action doctrine

would undermine “a robust sphere of individual

liberty.” Halleck, 139 S. Ct. at 1934.

This Court should thus grant certiorari, resolve the

conflict among the circuits, and reverse the Ninth

Circuit’s misapplication of the state-action doctrine.

STATEMENT OF THE CASE

1. This case involves actions by public officials on

their personal Facebook and Twitter accounts.

Facebook is a social-media platform that allows

individual account owners to disseminate content

through online “posts.” Pet.App. 63a. Each user has

a personal “profile” where access can be limited to

particular groups of people, and users also can create

“pages” that are generally open to the public.

Pet.App. 59a-60a. Other Facebook users with access

to a user’s page can respond to the user’s posts by

posting comments on the page (or by conveying nonverbal reactions through images such as a “thumbs

up” icon). Pet.App. 63a. The original poster and

other users can post replies to comments. Pet.App.

65a-66a. Facebook’s interface truncates posts or

responses that are lengthy, requiring an interested

viewer to click a “See More” button to read the full

text. Pet.App. 63a-65a.

The Facebook platform provides various ways for

account owners to moderate comments on their

pages. They can delete an individual comment or

“hide” it, making it visible only to the owner and the

commenter. Pet.App. 69a. They also can use a “word

filter” to prevent comments containing certain words

from appearing on their pages. Pet.App. 75a-76a.

The platform further enables an account owner to

“block” another Facebook user, which prevents that

user from commenting on or otherwise reacting to

posts on the owner’s page, but does not prevent that

user from continuing to view the page. Pet.App. 70a.

Twitter is a social-media platform that allows

individual account owners to send short online

messages known as “tweets.” Pet.App. 70a. Tweets

appear on a user’s “feed,” which generally is

accessible by all other Twitter users (and also by nonTwitter users with internet access). Id. Other

Twitter users can respond to a user’s tweets by

posting replies on the user’s feed (or by clicking a

heart icon or “retweeting” the message on their own

feeds). Id. When viewing a user’s feed, replies to the

user’s tweets are not visible unless a specific tweet is

selected. Id. The platform enables an account owner

to “block” another Twitter user (among other

options), which prevents that user from replying or

otherwise reacting to the owner’s tweets and also

from viewing the owner’s feed while logged into the

blocked account. Pet.App. 72a-73a.

2. Petitioners Michelle O’Connor-Ratcliff and T.J.

Zane are members of the Poway Unified School

District Board of Trustees. Pet.App. 59a. Petitioners

each created public Facebook pages before they were

elected in late 2014, and O’Connor-Ratcliff also

created a public Twitter page sometime before 2017.

Pet.App. 59a-60a. While Petitioners had previously

created private Facebook profiles to communicate

with family and friends, they created the additional

social-media accounts to communicate to the public

about their campaigns and political activities. Id.

After they were elected, Petitioners updated these

personal accounts to feature their Board positions

and provide information related to the Board and the

District. Pet.App. 99a-100a.

Respondents Christopher and Kimberly Garnier

are parents of children who are students in the

District. Pet.App. 59a. They posted repetitious and

non-responsive comments and replies to Petitioners’

posts and tweets. Pet.App. 73a. For example,

Christopher made the same comment on 42 different

posts by O’Connor-Ratcliff and the same reply on 226

of her tweets. Id. O’Connor-Ratcliff has blocked both

Garniers from her Facebook page and Christopher

from her Twitter page; Zane also was found to have

blocked both Garniers from his Facebook page.

Pet.App. 76a-78a.

3. Respondents filed suit under 42 U.S.C § 1983.

Pet.App. 55a. They claimed that Petitioners had

deprived them of their First Amendment speech

rights by blocking them from commenting on

Petitioners’ Facebook and Twitter pages, which they

characterized as public fora. Id.1

a. At the summary-judgment stage, the

district court held that Petitioners were entitled to

qualified immunity from damages, Pet.App. 108a110a, but allowed Respondents’ claim for injunctive

and declaratory relief to proceed to trial in light of a

disputed factual issue, Pet.App. 128a.

The court held as a matter of law, though, that

Petitioners’ blocking of Respondents satisfied the

First Amendment’s state-action requirement and the

related § 1983 color-of-law requirement. Pet.App.

110a-115a. The material facts are undisputed. See

Court of Appeals Excerpts of Record (CA.ER) 182-98

(parties’ joint statement of undisputed and disputed

facts on the state-action issue).

1 Although Respondents also claimed that Petitioners’ conduct

violated the California Constitution, they “did not offer evidence

or argue the state law claim.” Pet.App. 56a. The district court

therefore denied relief on that claim, Pet.App. 56a, 97a, and

Respondents did not contest that ruling on appeal.

On one hand, Respondents did not dispute that the

District was not involved at all in the creation or

maintenance of Petitioners’ social-media accounts.

The Facebook pages were created by Petitioners in

their personal capacities as campaign tools before

they even took office, and Petitioners thus will keep

those personal accounts (as well as a personal

Twitter account created while in office) even after

they leave office. CA.ER 182, 191-92. The District

has no control over the accounts, and the District has

not used any personnel or funds to support the

accounts’ operation. CA.ER 186-87, 195-96.

On the other hand, Petitioners did not dispute that

their personal social-media accounts featured their

official status and communicated with the public

about their jobs and District-related matters. The

accounts prominently featured their official titles and

contact information. CA.ER 187-88, 192-93; Pet.App.

99a-100a. And the accounts also predominantly

addressed Board activities and information about the

District. CA.ER 187-88, 194-95; Pet.App. 100a.

On these undisputed facts, the court concluded

that state action existed. The court so held despite

acknowledging that, “[b]esides [Petitioners], no

[District] employee regulated, controlled, or spent

money maintaining any of their social media pages.”

Pet.App. 100a. Nor did (or could) the court find that

Petitioners’ use of their personal social-media pages

was required by their official duties. Instead, the

court reasoned that, “[b]ecause [Petitioners] could not

have used their social media pages in the way they

did but for their positions on [the District]’s Board,

their blocking of [Respondents] satisfies the stateaction requirement.” Pet.App. 115a. The court

emphasized that Petitioners “swathed” their pages in

“the trappings” of their offices and that they

frequently communicated with the public about

“events which arose out of their official status,”

including matters they had the ability to discuss only

“due to their positions.” Pet.App. 114a-115a.

For similar reasons, the court held as a matter of

law that Petitioners’ social-media accounts had

become designated public fora under the First

Amendment. Pet.App. 115a-122a. But the court

concluded that there was a genuine factual dispute,

material to the standard of scrutiny, as to whether

Petitioners’ reasons for blocking Respondents were

content-neutral. Pet.App. 125a-128a.

b. After a two-day bench trial, the district court

concluded that Petitioners had violated Respondents’

First Amendment rights. Pet.App. 97a. At the

outset, the court incorporated into the trial record the

summary-judgment evidence on the state-action

issue, CA.ER 1498, and it reaffirmed that Petitioners

acted under color of state law by blocking

Respondents from designated public fora purportedly

created through their personal social-media accounts,

Pet.App. 81a-85a. Turning to the factual dispute, the

court found that Petitioners had blocked Respondents

because of the unduly repetitive manner of their

comments and replies, without regard to their critical

content. Pet.App. 85a-89a. Despite finding that the

blocking was content-neutral, the court concluded

that Petitioners’ continued blocking of Respondents

was not adequately tailored to an appropriate

interest. Pet.App. 89a-96a. It therefore granted

injunctive and declaratory relief. Pet.App. 97a.

4. The Ninth Circuit affirmed. Pet.App. 6a. The

court held that the law had not been clearly

established enough to defeat Petitioners’ qualified

immunity from damages, Pet.App. 50a-52a, but that

there is an ongoing First Amendment violation

warranting prospective relief, Pet.App. 15a-50a.

The court focused on the state-action issue.

Pet.App. 18a-36a. It acknowledged the undisputed

facts that Petitioners’ personal social-media accounts

were originally created in their private capacities “to

promote their political campaigns,” Pet.App. 6a, and

have been maintained while in office without any

“[District] funding or authorization,” Pet.App. 26a.

Indeed, it admitted that Petitioners’ “use of their

social media accounts was … not required by[] their

official positions,” albeit “directly connected” to those

positions. Pet.App. 20a.

The court nevertheless held that Petitioners “have

acted under color of state law by using their social

media pages as public fora,” because “they clothed

their pages in the authority of their offices and used

their pages to communicate about their official

duties.” Pet.App. 6a, 26a. The court emphasized

that

Petitioners

“identified

themselves”

government officials, “listed their official titles in

prominent places,” and “included [an] official

[District] email address in the … contact

information” of O’Connor-Ratcliff’s Facebook page.

Pet.App. 22a-23a. The court treated such indicia as

apparent authority, “whether or not the District had

in fact authorized” the pages. Pet.App. 26a. The

court further stressed that the accounts were

“overwhelmingly

geared

toward

providing

information to the public about the [District] Board’s

official activities and soliciting input from the public

on policy issues relevant to Board decisions.”

Pet.App. 23a (cleaned up). The court asserted that

Petitioners used their “‘governmental status’ to

influence … public engagement with their social

media pages” and used the pages “to keep the public

apprised” of District activities. Pet.App. 24a (cleaned

up). The court treated such information provision as

related to Petitioners’ duties, even if not carried out

pursuant to any actual duty. Pet.App. 25a-26a. In

short, the court held that, “both through appearance

and content, [Petitioners] held their social media

pages out to be channels of communication with the

public about the work of the [District] Board.”

Pet.App. 23a. In support, the court invoked circuit

precedent addressing the apparent authority of offduty law-enforcement officers, Pet.App. 21a-22a, and

parallel decisions from the Second, Fourth, and

Eighth Circuits, Pet.App. 29a-36a.

The Ninth Circuit made quick work of the

remaining elements of the First Amendment claim.

It concluded that Petitioners’ social-media accounts

are public rather than non-public government fora,

Pet.App. 37a-41a, that Petitioners’ content-neutral

blocking of Respondents is not adequately tailored to

an appropriate interest, Pet.App. 41a-50a, and that

Respondents continue to have a live claim despite

Petitioners’ post-blocking use of word filters to

effectively prevent most comments on their Facebook

pages, Pet.App. 15a-18a. This petition does not

contest those holdings, and the question presented is

limited to the threshold state-action holding.

REASONS FOR GRANTING THE PETITION

THE DECISION BELOW PRESENTS AN

ACKNOWLEDGED CIRCUIT SPLIT ON WHETHER

PUBLIC OFFICIALS ENGAGE IN STATE ACTION

WHEN BLOCKING INDIVIDUALS FROM THEIR

PERSONAL SOCIAL-MEDIA ACCOUNTS

In this context, the Sixth Circuit’s state-action test

focuses narrowly on whether a public official’s

operation of a social-media account relies on any

governmental authority or carries out any

governmental duty. By contrast, the Ninth Circuit,

along with the Second, Fourth, and Eighth Circuits,

have more broadly considered whether the account

has an official appearance and serves the purpose of

informing the public about official business. The

Sixth Circuit and Ninth Circuit each expressly

acknowledged the conflicting legal standards, which

led to directly conflicting results on materially

indistinguishable facts. This Court should resolve

the acknowledged circuit split.

A. The Authority-Or-Duty Test Adopted

By The Sixth Circuit

1. In Lindke v. Freed, 37 F.4th 1199 (6th Cir.

2022) the Sixth Circuit confronted the same question

that the Ninth Circuit faced a month later and

answered it the opposite way. The case involved a

city manager who used his personal Facebook page to

communicate with the public about city business; he

blocked a disconcerted citizen who had posted

comments criticizing the city’s COVID-19 policies.

Id. at 1201-02.

The Sixth Circuit first held that a public official’s

operation of a social-media account is state action

“only” if it “either (1) [is undertaken] pursuant to his

actual or apparent duties or (2) us[es] his state

authority.” Id. at 1204; see id. at 1202-04. And the

court then concluded that the manager’s “page

neither derives from the duties of his office nor

depends on his state authority.” Id. at 1204.

On the authority element, the Sixth Circuit

emphasized that the “page did not belong to the office

of city manager.” Id. at 1205. The manager “created

the page years before taking office, and there’s no

indication his successor would take it over.” Id.

Moreover, the manager did not “rely on government

employees to maintain [it].” Id. He “is the page’s

only administrator,” and “there’s no evidence that

staffers were involved in preparing content.” Id.

Simply put, the manager’s operation of the page did

not depend on actual or apparent governmental

authority because the page was his private property,

not public property.

On the duty element, the Sixth Circuit emphasized

that “no state law, ordinance, or regulation compelled

[the manager] to operate his Facebook page.” Id. at

1204. Nor were there any “government funds” or

other evidence “to suggest operating the page was

[the manager’s] official responsibility.” Id. at 1205.

Unsurprisingly, he had no actual or apparent

governmental duty to use his private property to

perform his public job; instead, he was using his own

property for his own ends.

2. The Sixth Circuit considered and rejected the

“purpose and appearance” approach that “several

other courts have used.” Id. at 1205-06 (citing cases

from the Second, Fourth, and Eighth Circuits). The

Sixth Circuit “part[ed] ways with [those] circuits’

approach” for essentially two reasons.

First, the court explained that whether a public

official’s personal social-media account depicts the

“trappings” of office is irrelevant to whether blocking

a user from the account is an exercise of actual or

apparent state authority. Unlike an off-duty police

officer’s commands, a public official’s Facebook and

Twitter pages do “not carry the force of law” and

generally “gain[] no authority” based on their

“appearance.” Id. at 1206. The court thus deemed it

immaterial that the manager “updated his Facebook

page to reflect his [official] title”; featured a photo

“wearing his city-manager pin”; and listed “a city

address, email, and website” as the page’s contact

information. Id. at 1201, 1206.

Second, the court explained that it would “prove[]

too much” to treat a public official’s personal socialmedia activity as a state duty based on the platitude

that “‘regular communication with [constituents] is

essential to good government.’” Id. at 1205. After all,

“[w]hen [a public official] visits the hardware store,

chats with neighbors, or attends church services, he

isn’t engaged in state action merely because he’s

‘communicating’—even if he’s talking about his job.”

Id. The court thus deemed it immaterial that the

manager “posted about some of the administrative

directives he issued” and city “policies he initiated.”

Id. at 1201.

3. Accordingly, it is clear that Petitioners’

blocking of Respondents from their Facebook and

Twitter pages would not be treated as state action in

the Sixth Circuit. The elements that the Sixth

Circuit deemed essential were acknowledged to be

absent here by the Ninth Circuit; and the elements

that the Ninth Circuit emphasized here were deemed

irrelevant by the Sixth Circuit.

The Ninth Circuit recognized that Petitioners’

operation of their personal social-media accounts did

not rely on any state authority as the Sixth Circuit

used that term:

the accounts were created in

Petitioners’ private capacities “to promote their

political campaigns,” Pet.App. 6a, and have been

maintained while in office without any “[District]

funding or authorization,” Pet.App. 26a. Likewise,

the Ninth Circuit recognized that Petitioners’ use of

the accounts did not carry out any state duty as the

Sixth Circuit used that term: the “use of their social

media accounts was … not required by[] their official

positions,” despite being “directly connected” to those

positions. Pet.App. 20a.

Conversely, whereas the Ninth Circuit stressed

that Petitioners’ accounts had an appearance

featuring their “official identifications” and content

“inform[ing] … the public” about “official activities,”

Pet.App. 23a, the Sixth Circuit rejected that

approach. “Instead of examining a page’s appearance

or purpose, [it] focus[es] on the actor’s official duties

and use of government [authority]” (or lack thereof).

Lindke, 37 F.4th at 1206. Indeed, the Ninth Circuit

evidently reads the Sixth Circuit’s opinion the same

way. It flatly “decline[d] to follow the Sixth Circuit’s

reasoning,” rather than claiming that state action

exists on the facts presented here even under that

“different analysis.” Pet.App. 35a.

B. The Appearance-And-Purpose Inquiry

Applied By The Ninth, Second, Fourth,

And Eighth Circuits

1. As to the other side of the circuit conflict, it is

equally clear that the Ninth Circuit would find state

action on the facts presented in the Sixth Circuit’s

case. Given that the city manager’s Facebook page

featured his official title, photo, and contact

information, Lindke, 37 F.4th at 1201, 1206, the

Ninth Circuit would conclude that he “held [it] out to

be [an] official channel[] of communication” and

thereby used its “appearance” to “influence … public

engagement,” Pet.App. 23a-24a. And given that the

manager’s page informed his constituents about city

policies and administrative directives, Lindke, 37

F.4th at 1201, 1205, the Ninth Circuit would

conclude that this “content” “related directly to [his]

duties,” Pet.App. 23a-24a.

Tellingly, the Ninth

Circuit did not even try to distinguish the Sixth

Circuit’s decision on those facts. Pet.App. 35a-36a.

2. As noted, the Ninth Circuit is not alone in its

approach. It and the Sixth Circuit both recognized

that the Second, Fourth, and Eighth Circuits have

applied the same “mode of analysis” broadly

considering an account’s “purpose and appearance.”

Pet.App. 36a; Lindke, 37 F.4th at 1205-06.

The seminal case is Davison v. Randall, 912 F.3d

666 (4th Cir. 2019). The Fourth Circuit held that the

Chair of a county Board of Supervisors acted under

color of state law in violation of the First Amendment

when she blocked a constituent from a Facebook page

that she had created before taking office. Id. at 67273. Laying the path followed by the Ninth Circuit,

the Fourth Circuit deemed the page “a tool of

governance” because it was “swathed … in the

trappings of her office” and was used to communicate

with the public about the Board’s “official activities”

in a manner that “[a] private citizen could not” do.

Id. at 680-81.

Next came Knight First Amendment Institute v.

Trump, 928 F.3d 226 (2d Cir. 2019). The Second

Circuit applied identical reasoning to the personal

Twitter account that Donald Trump frequently used

both before and while he was President. Id. at 23436.

Although the Supreme Court vacated that

opinion as moot after he left office, Biden v. Knight

First Amend. Inst., 141 S. Ct. 1220 (2021), the Ninth

Circuit concluded that it retained “persuasive value.”

Pet.App. 31a n.10. Less persuaded by that opinion

were Second Circuit Judges Park and Sullivan, who

had urged their full court to reverse it based on

reasoning that paralleled the Sixth Circuit’s

authority-or-duty test. See Knight First Amend. Inst.

v. Trump, 953 F.3d 216, 226-28 (2d Cir. 2020)

(dissenting from denial of rehearing en banc).

Then there is Campbell v. Reisch, 986 F.3d 822

(8th Cir. 2021). Without definitively resolving the

question, the Eighth Circuit nominally applied the

appearance-and-purpose approach adopted by the

Second and Fourth Circuits. Id. at 825. But the

panel majority did so in a very different way than

those other courts. The majority concluded that a

candidate’s campaign Twitter account had not

“become[] an organ of official business” after she was

elected to the state legislature, because “[t]he overall

theme of [her] tweets—that she’s the right person for

the job—largely remained the same after her

electoral victory.” Id. at 826. The majority rejected

the relevance of tweets that “report[ed] on events

that occurred in the state legislature,” based on the

truism that they “were consistent with a desire to

create a favorable impression of [the legislator] in the

minds of her constituents.” Id. at 827. Likewise, the

majority dismissed the significance of the various

ways the Twitter account identified her as a public

official, because “even if these can be trappings of an

official account, they can quite obviously be trappings

of a personal account as well.” Id.

As the Eighth Circuit dissent and the Ninth

Circuit here recognized, the facts in Campbell are not

materially different from the facts in Davison,

Knight, Lindke, or this case. See id. at 828-29 (Kelly,

J., dissenting); Pet.App. 34a n.11. Such inconsistent

application of the appearance-and-purpose approach

confirms the Sixth Circuit’s observation that its

authority-or-duty test offers more “predictable

application for state officials and district courts alike,

bringing the clarity of bright lines to a real-world

context that’s often blurry.” Lindke, 37 F.4th at

1206-07; see infra at 28-32. In turn, that underscores

why this Court should now resolve the circuit conflict

and adopt the Sixth Circuit’s clear and correct test.

II. THE

NINTH

CIRCUIT’S

STATE-ACTION

HOLDING IS ERRONEOUS AND IMPORTANT

Under this Court’s precedents, a public official does

not engage in state action when blocking users from a

social-media account where, as here, the account is

not operated pursuant to any governmental authority

or duty. The Ninth Circuit mistakenly engaged in

further consideration of whether the account conveys

an official appearance and communicates with the

public about official business.

Those common

attributes of public officials’ social-media pages

cannot somehow transform personal accounts into

governmental public fora—especially where the

challenged action is not itself the official-looking

communication, but rather the blocking of a thirdparty’s access. The state-action requirement exists to

protect individual liberty, and that includes the

liberty of individuals holding public office to control

the manner in which they use their personal socialmedia accounts to communicate with the public about

their jobs and the work of government.

A. State Action Is Absent Where A Public

Official Does Not Rely On Any State

Authority Or Carry Out Any State

Duty In Operating Social-Media Pages

1. The First Amendment’s Free Speech Clause,

which applies to the States through the Fourteenth

Amendment,

“prohibits

only

governmental

abridgment of speech.” Manhattan Cmty. Access

Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2021). It

“does not prohibit private abridgment of speech.” Id.

The Constitution thus permits people to “open their

property for speech” without “los[ing] the ability to

exercise what they deem to be appropriate editorial

discretion within that open forum.” Id. at 1930-31.

When adjudicating claims under the Free Speech

Clause and other similarly limited constitutional

provisions, this Court uses the “state-action doctrine”

to “distinguish[] the government from individuals

and private entities.” Id. at 1928 (citing Brentwood

Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531

U.S. 288, 295-96 (2001)); see also Lugar v. Edmonson

Oil Co., 457 U.S. 922, 935 n.18 (1982) (holding that

conduct satisfying the constitutional state-action

requirement also satisfies the statutory color-of-law

requirement under 42 U.S.C. § 1983).

“By enforcing th[e] constitutional boundary

between the governmental and the private, the stateaction doctrine protects a robust sphere of individual

liberty.” Halleck, 139 S. Ct. at 1928. It “limit[s] the

reach of federal law and federal judicial power” and

also “avoids imposing on the State … responsibility

for conduct for which [it] cannot fairly be blamed.”

Lugar, 457 U.S. at 936. That is why the bedrock

principle underlying this Court’s state-action cases is

the “insiste[nce] that conduct allegedly causing the

deprivation of a federal right be fairly attributable to

the State.” Id. at 937.

Under the two-pronged standard implementing

that principle, “state action requires both an alleged

constitutional deprivation ‘caused by the exercise of

some right or privilege created by the State …’, and

that ‘the party charged with the deprivation must be

a person who may fairly be said to be a state actor.’”

American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 50 (1999) (quoting Lugar, 457 U.S. at 937). As to

the latter prong, this Court has used various tests to

determine whether a private actor is fairly deemed a

state actor, including whether “the private entity

performs a traditional, exclusive public function”;

“the government compels the private entity to take a

particular action”; or “the government acts jointly

with the private entity.” Halleck, 139 S. Ct. at 1928;

see Brentwood, 531 U.S. at 295 (explaining that these

tests seek to determine whether there exists “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”).

Of course, Petitioners here are private individuals

who also hold public office. But that status plainly

does not itself transform all their conduct into state

action, for two reasons.

First, the alleged violation still “must be caused by

the exercise of some right or privilege created by the

State.” West v. Atkins, 487 U.S. 42, 49 (1988).

Although this generally will be the case for a public

official when “acting in his official capacity” and

“exercising his responsibilities pursuant to state

law,” that is not so when he acts in his private

capacity, because such conduct is not “made possible

only because [he] is clothed with the authority of

state law” in his other, official pursuits. See id. at 4950. For example, a public official would engage in

state action if he issued an edict banning a competing

candidate from placing election signs on public roads,

or if he ordered his subordinates to remove such signs

under color of law; but it would not be state action if

he or his campaign staff simply stole the signs under

color of night. Far from being a state-created “right

or privilege,” that would be the type of private theft

that any nefarious candidate could perpetrate.

Second, even if state-created rights or privileges

are invoked, the “acts of offic[ials] in the ambit of

their personal pursuits are plainly excluded.” Screws

v. United States, 325 U.S. 91, 111 (1945) (plurality

op.). In contrast to officials who use state-created

rights or privileges “to perform their official duties,”

id., an official cannot “fairly be said to be a state

actor” when she merely invokes rights or privileges

available to ordinary citizens in order to effectuate

her own private objectives, see West, 487 U.S. at 49.

For example, a public official who uses force to eject a

trespasser placing election signs on the yard of her

private residence may be wielding state-law powers

of property owners, but she plainly is not engaged in

state action—whether or not she allows others to

place signs on her yard. Cf. Halleck, 139 S. Ct. at

1930. This Court’s state-action precedents do not

support stripping individuals of their private

property rights because they also hold public office.

2. The application of these principles in the

context of public officials’ social-media activity is

straightforward. And the conclusion is clear that

Petitioners’ challenged conduct is not state action.

Petitioners “exercise[d] [no] right or privilege

created by the State” in operating their personal

social-media accounts. Sullivan, 526 U.S. at 50. As

to “the specific conduct of which the plaintiff

complains,” id. at 51, Petitioners’ ability to block

Respondents is a feature of the platforms that

Facebook and Twitter have granted to all account

owners—not just public officials and entities.

Pet.App. 70a, 72a.

More generally, Petitioners’

creation and maintenance of the accounts have been

done “in the ambit of their personal pursuits,” not in

“perform[ing] their official duties.” Screws, 325 U.S.

at 111. Neither the Ninth Circuit nor Respondents

dispute that the accounts were originally created by

Petitioners in their private capacities as campaign

tools—in fact, the Facebook pages were created

before Petitioners were elected to office, and all the

pages will still be owned by Petitioners after they

leave office.

Pet.App. 6a; CA.ER 182, 191-92.

Likewise, neither the Ninth Circuit nor Respondents

dispute that, even while Petitioners have been in

office, they have continued to maintain the pages

without any direction, funding, support, or other

involvement by the District. Pet.App. 20a, 26a;

CA.ER 186-87, 195-96.

Such “private behavior”

cannot “be fairly treated as that of the [District]

itself,” Brentwood, 531 U.S. at 295, and the District

“cannot fairly be blamed” for it, Lugar, 457 U.S. at

936. Because Petitioners’ operation of their pages

“neither derives from the duties of [their] office[s] nor

depends on [their] state authority,” they acted “in

[their] personal capacit[ies], not [their] official

capacit[ies].” Lindke, 37 F.4th at 1204.

Halleck strongly supports that conclusion. In that

case, a filmmaker brought a First Amendment suit

against MNN, the nonprofit corporation that operates

the public-access channels on Time Warner’s cable

system in Manhattan. 139 S. Ct. at 1926-27. This

Court held that the First Amendment does not

constrain MNN’s ability to “exercise editorial

discretion over the speech and speakers” on its

public-access channels, because “merely hosting

speech by others is not a traditional, exclusive public

function” that “transform[s] private entities into state

actors.” Id. 1930. The Court further held that “the

public access channels are not the property of New

York City” because the City “does not own or lease”

the channels or “possess a formal easement or other

property interest” in them—notwithstanding that the

City’s franchise agreements with Time Warner gave

it the power to select MNN as the channels’ operator.

Id. at 1933. To be sure, MNN is not itself a public

official, but that is an immaterial distinction. The

case would be no different if, instead of MNN, the

channels were owned by Bloomberg L.P. during the

period when Mr. Bloomberg was also Mayor

Bloomberg. Given that the City’s ability to select

MNN as the operator was insufficient to transform

the public-access channels into public property, it

would be insufficient a fortiori if the channels were

owned by an individual who merely happened to be a

City official—that would provide the City itself no

control over how he operated that private enterprise.

A final hypothetical drives the point home. While

this case concerns personal social-media accounts,

nothing about the state-action analysis is limited to

the online arena. Private citizens who are also public

officials own all sorts of real property that they can

use to communicate with the public about their

official activities. For example, to conduct a townhall discussion about past and future administration

initiatives, President Bush could have invited

members of the public to his Crawford ranch and

Governor Pritzker could do likewise at one of the

Hyatt resorts owned by his family. But if they did

not rely on any governmental resources or carry out

any governmental obligations, no one could seriously

conclude that they had transformed their private

properties into temporary public fora, thereby losing

their rights as property owners to exclude unwanted

visitors from the events. Even when such officials’

interaction with the public is itself done in an official

capacity, that does not mean the private property

where it occurs becomes a governmental forum.

Knight, 953 F.3d at 229 (Park, J., dissenting).

Moreover, such officials often are still acting only in a

personal capacity, “speaking as citizens about

matters of public concern” and “promoting the

public’s interest in receiving the well-informed views

of government employees engag[ed] in civic

discussion.” Garcetti v. Ceballos, 547 U.S. 410, 419

(2006); accord Lindke, 37 F.4th at 1205.

3. Finally, and relatedly, applying the authorityor-duty test for state action in this context is

essential to “protect[] a robust sphere of individual

liberty.” Halleck, 139 S. Ct. at 1934. Where public

officials do not operate their social-media accounts

pursuant to any state authority or duty, the

Constitution does not deprive them of the “rights to

exercise editorial control over speech and speakers on

their properties or platforms” that other individuals

possess. Id. at 1932.

Indeed, the contrary conclusion could have the

perverse “consequence of creating less speech if the

social-media pages of public officials are overrun with

harassment, trolling, and hate speech, which officials

will be powerless to filter.” Knight, 953 F.3d at 231

(Park, J., dissenting). Blocking such speech from a

purported “public forum” on content-based and

viewpoint-based grounds will inevitably fail under

strict scrutiny, especially given that the Ninth

Circuit here even rejected under intermediate

scrutiny content-neutral blocking of repetitive and

non-responsive spammers, Pet.App. 41a-50a. Faced

with “the unappetizing choice of allowing all comers

or closing the platform altogether,” Halleck, 139 S.

Ct. at 1931, many public officials will choose the

latter, as the district court below admitted may be

the “sad” effect of its judgment, Pet.App. 97a.

Moreover, treating officials’ personal social-media

accounts as public fora will directly abridge their own

speech. “[W]hen public employees make statements

pursuant to their official duties, [they] are not

speaking as citizens for First Amendment purposes,”

and the governmental employer may exercise “control

over what [it] itself has commissioned or created.”

Garcetti, 547 U.S. at 421-22. If Petitioners’ Facebook

and Twitter pages were truly public fora of the

District, that would seem to imply that the Board as

a whole could mandate what they say and do not say

on those pages—even though those pages have been

created and maintained by Petitioners without any

involvement by the District. Officials also would run

an inevitable risk of suit under the Establishment

Clause if they were to include “statements about

their faith” in a manner perceived by some as too

sectarian or too prominent. Knight, 953 F.3d at 227

n.3 (Park, J., dissenting).

This Court should stop the parade of horribles

before it gets started. State action is absent where,

as here, public officials operate personal social-media

accounts without relying on any state authority or

carrying out any state duty.

B. The Ninth Circuit’s Consideration Of

Appearances And Purposes In This

Context Is Misguided and Unworkable

1. As a threshold matter, the Ninth Circuit

misread this Court’s precedent.

It deemed

“satisfaction” of a “nexus test”—i.e., whether 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’”—to

be “sufficient to find state action.” Pet.App. 19a-20a

(quoting Brentwood, 531 U.S. at 295). But this Court

has not adopted a vague “close enough to government

work” standard as a legal test for state action.

Rather, the quoted language from Brentwood is a

generic restatement of the conclusion that private

activity “is fairly attributable” to the State. 531 U.S.

at 295. This Court has drawn that conclusion,

though, only “in a few limited circumstances” based

on more concrete analysis—e.g., where the private

entity “performs a traditional, exclusive public

function”; is “compel[ed] … to take a particular

action” by the government; or “acts jointly” with the

government.

Halleck, 139 S. Ct. at 1928; see

Brentwood, 531 U.S. at 295-96 (similar).

Moreover, here, Petitioners are private individuals

and also themselves public officials, so the real issue

is how to draw “the distinction between [their]

governmental and personal activities.” Lindke, 37

F.4th at 1202. The question is whether their conduct

is “the exercise of some right or privilege created by

the State” for public officials, Sullivan, 526 U.S. at

50, or instead is merely “act[ion] of offic[ials] in the

ambit of their personal pursuits,” Screws, 325 U.S. at

111. The proper way to answer that question is to

focus on whether the conduct relies on governmental

authority or carries out governmental duties.

Lindke, 37 F.4th at 1203.

The only state-action cases the Ninth Circuit cited

to support its “[n]exus [a]nalysis” addressed “off-duty

governmental employees,” Pet.App. 20a-22a, but

those cases do not support its position. To be sure,

they considered the apparent authority and duty of

law-enforcement officers. But that is because even

individuals who merely appear to be acting as lawenforcement officers “actually evoke[] state authority”

over members of the public who comply with their

commands, Lindke, 37 F.4th at 1206, whether or not

they “misused” or “overstep[ped]” their actual

authority, Screws, 325 U.S. at 110-11.

2. By contrast, the appearance of Petitioners’

social-media pages does not create apparent authority

supporting a state-action determination.

First, regardless of how much the Facebook and

Twitter pages depicted and discussed Petitioners’

jobs, it would be patently unreasonable to mistakenly

believe that these accounts are actually or even

purportedly governmental rather than personal. “[I]t

is now commonplace for politicians to use personal

accounts to promote their official activities,” Knight,

953 F.3d at 230 (Park, J., dissenting), and the pages’

content extends back before Petitioners were elected

to office, Pet.App. 6a; CA.ER 182, 191-92. Tellingly,

Respondents themselves never claimed to be

confused as to the true nature of the pages, and there

is no evidence that any other member of the public

ever was either. See Campbell, 986 F.3d at 827

(“even if these can be trappings of an official account,

they can quite obviously be trappings of a personal

account as well”). The Ninth Circuit nevertheless

faulted Petitioners for not posting “any disclaimer”

that these are private-capacity accounts. Pet.App.

26a. But requiring private individuals holding public

office to alter their own speech, in order to avoid a

purported violation of the First Amendment’s

constraints on governmental abridgement of speech,

would turn that provision on its head. Indeed, while

the First Amendment (sometimes) barely tolerates

compelled disclosures imposed by statute, see Riley v.

National Fed’n of Blind of N.C., Inc., 487 U.S. 781,

795-801 (1988), it invalidates them where, as here,

they are not justified by a plausible informational

deficit, see National Inst. of Fam. & Life Advocates v.

Becerra, 138 S. Ct. 2361, 2377 (2018).

Second, even implausibly assuming that someone

somewhere may be confused, Petitioners would have

“gain[ed] no authority” from that mistake, as the

challenged conduct plainly “do[es] not carry the force

of law” regardless.

Lindke, 37 F.4th at 1206.

Petitioners’ unilateral ability to block Respondents

obviously did not depend on how Respondents or the

public perceived the pages. The same goes for

Petitioners’ operation of the pages more generally.

This is not a situation, for example, where a member

of the public complied with a statement by

Petitioners on their pages due to a misperception

that it was an official command of the Board rather

than the personal view of one Board member.

Rather, the Ninth Circuit merely objected that,

because of their positions on the Board, Petitioners

are uniquely able to announce and discuss the

Board’s work and members of the public are

especially likely to engage with their pages. Pet.App.

23a-24a. But of course, all that is true wherever

public officials speak about their jobs—whether it be

on a personal social-media page plastered with

“private capacity” disclaimers, at real property that

they personally own and use to promote their

political agendas, or in any other forum for speech.

Indeed, the Ninth Circuit’s own invocation of off-duty

police officers illustrates the flaw in its analogy.

Imagine if a beat cop’s personal social-media page

equally featured indicia of her job (displaying her

title, uniformed photos, etc.) and equally focused on

communicating with the public about her job

(discussing recent arrests, crime-prevention policies,

etc.). No one could seriously conclude that the cop’s

page was an exercise of actual or apparent

governmental authority, even it was the most widely

followed page about policing because of her job.

3. Likewise, that the content of Petitioners’ pages

is related to Petitioners’ duties is not remotely the

same thing as their operating the pages as a means

of carrying out those duties.

“[A] citizen who works for the government is

nonetheless a citizen,” and so the First Amendment

protects rather than constrains the right of public

officials to “speak[] as citizens about matters of public

concern.” Garcetti, 547 U.S. at 419. Looking to the

content of the speech to determine the capacity in

which it is spoken is thus futile. “[W]hen public

officials deliver public speeches, we recognize that

their words are not exclusively a transmission from

the government because these oratories have

embedded within them the inherently personal views

of the speaker as an individual member of the polity.”

Van Orden v. Perry, 545 U.S. 677, 723 (2005)

(Stevens, J., dissenting); accord Knight, 953 F.3d at

227 n.3 (Park, J., dissenting) (“[W]hen incumbent

officials run for reelection, we ordinarily understand

them to be expressing a mix of personal and official

views.”). That explains why the Eighth Circuit panel

majority in Campbell viewed the legislator’s Twitter

page as “more akin to a campaign newsletter” while

the dissent (and the Ninth Circuit here) viewed it as

“an organ of official business.” Compare 986 F.3d at

826-27, with id. at 828-29 (Kelly, J., dissenting), and

Pet.App. 34a n.11.

Instead of a hopeless labeling game, the workable

way to decide whether an official’s communication

with the public is carrying out a public duty is to look

at whether the government requires the speech,

controls its content, or facilitates its dissemination.

Lindke, 37 F.4th at 1204-05. Here, it is undisputed

that Petitioners’ “use of their social media accounts

was … not required by” the District, Pet.App. 20a,

and that “no [District] employee regulated,

controlled, or spent money maintaining any of their

social media pages,” Pet.App. 100a; accord CA.ER

186-87, 195-96. Petitioners’ social-media activity

cannot “be fairly treated as that of the [District]

itself,” Brentwood, 531 U.S. at 295, when the District

“plays absolutely no part in establishing or

[operating]” the accounts, Moose Lodge No. 107 v.

Irvis, 407 U.S. 163, 175 (1972).

Despite all this, the Ninth Circuit objected that,

after Petitioners were elected, they “virtually never

posted overtly political or self-promotional material,”

instead focusing on “official District business or

promot[ing] the District generally. Pet.App. 26a.

That is a non sequitur twice over. Wholly apart from

politics, it ignores that elected officials have a First

Amendment right to “speak[] as citizens about

matters of public concern,” including especially where

they have “well-informed views [as] government

employees” that they wish to share by “engaging in

civic discussion.” Garcetti, 547 U.S. at 419. And even

just fixating on politics, elected officials also have a

First Amendment right to employ subtle messaging

“consistent with a desire to create a favorable

impression of [themselves] in the minds of [their]

constituents.” Campbell, 986 F.3d at 827. Indeed, it

is undisputed that Petitioners viewed themselves as

“always running” for re-election, that they used their

pages to portray themselves “in the most positive

light,” and that they “hoped [their pages] will win

[them] support.” CA.ER 185, 187, 192. Once more,

the Ninth Circuit’s approach is unworkable for courts

and also an infringement on public officials’ own

speech to the public.

4. In sum, the Ninth Circuit effectively held that,

even if an official’s personal social-media account is

not actually a “public forum,” it can still be an

“apparent” public forum. And by this, the court

essentially meant that the same appearance and

content could have occurred on a hypothetical page

that carried out governmental duties and relied on

governmental authorities, even when it is undisputed

that the real page in fact did not. This Court should

decisively reject that position, which makes a

mockery of the “constitutional boundary between the

governmental and the private” as well as the “robust

sphere of individual liberty” that the state-action

doctrine protects. Halleck, 139 S. Ct. at 1928.

Indeed, Halleck all but forecloses that position

already. Again, if Bloomberg L.P. had owned the

public-access channel, labeled it “the Mayor’s channel

for public dialogue,” plastered his official photo in the

corner of the screen, and ran constant programming

about his administration’s achievements, the stateaction analysis would be no different. The channel

still would “not [be] the property of New York City,”

because the City itself would “not own or lease” the

channel, would “not possesses a formal easement or

other property interest” in it, and indeed would have

no control over it based on the Mayor’s private

ownership. Halleck, 139 S. Ct. at 1933. And thus

Mayor Bloomberg, no less than any other private

property owner in the City, would not have been

constrained by the First Amendment in “exercis[ing]

editorial discretion over the speech and speakers in

the forum.” Id. at 1930. Although that hypothetical

is admittedly unrealistic, whereas public officials’ use

of personal social-media pages is ubiquitous, the legal

conclusion should be the same: in either case, the

speech forum is operated “in [a] personal capacity,

not [an] official capacity,” because it “neither derives

from the duties of [the] office nor depends on [any]

state authority.” Lindke, 37 F.4th at 1204.

III. THIS CASE IS AN IDEAL VEHICLE TO RESOLVE

THE QUESTION PRESENTED

Because “it is now commonplace for politicians to

use personal accounts to promote their official

activities, … this case is just one of several similar

lawsuits.” Knight, 953 F.3d at 230-31 (Park, J.,

dissenting). Within the span of the last three years,

five circuit courts have directly confronted the

question presented in reasoned opinions that fully

ventilate the competing positions. See supra at Part

I. Additional cases are currently pending in district

courts in other circuits (involving officials at all levels

of government), and more will inevitably follow.2

2 See, e.g., Czosnyka v. Gardiner, No. 21-3240, 2022 WL 407651,

at *2-3 (N.D. Ill. Feb. 10, 2022) (declining to dismiss claim

against city alderman for Facebook blocking); Buentello v.

Boebert, 545 F. Supp. 3d 912, 916-21 (D. Colo. 2021) (denying

This case is ideally postured for the Court to

provide a definitive resolution.

The question

presented was squarely pressed and passed upon in

both lower courts. See supra at 8-11. The material

facts were undisputed at summary judgment, and the

answer to the legal question is dispositive of whether

state action exists. See supra at 7-8, 14-15. In turn,

the absence of state action is fatal to Respondents’

sole claim, while Petitioners advance no alternative

arguments to challenge the final judgment below.

See supra at 7 & n.1, 11. Accordingly, the question

presented is cleanly teed up, and there is no

impediment to this Court’s ability to decide it.

CONCLUSION

The petition for a writ of certiorari should be

granted.

October 4, 2022

Respectfully submitted,