Reply Brief — Michelle O’Connor-Ratcliff, et al., Petitioners v. Christopher Garnier, et ux.

Supreme Court briefDec 20, 2022

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No. 22-324

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

REPLY TO BRIEF IN OPPOSITION

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

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................................... ii

INTRODUCTION ....................................................... 1

ARGUMENT .............................................................. 3

RESPONDENTS FAIL TO REFUTE THE

ACKNOWLEDGED CIRCUIT SPLIT ............................ 3

II. RESPONDENTS FAIL TO IDENTIFY ANY

VEHICLE PROBLEM ................................................ 9

III. RESPONDENTS FAIL TO REHABILITATE THE

NINTH CIRCUIT’S ERRONEOUS DECISION ............. 11

CONCLUSION ......................................................... 13

TABLE OF AUTHORITIES

Page(s)

CASES

Brentwood Acad. v. Tenn. Secondary

Sch. Athletic Ass’n,

531 U.S. 288 (2001) .............................................. 12

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021) .................... 4, 6, 8, 12

Elrod v. Burns,

427 U.S. 347 (1976) ................................................ 9

Garcetti v. Ceballos,

547 U.S. 410 (2006) ........................................ 10, 12

Lindke v. Freed,

37 F.4th 1199 (6th Cir. 2022) ................... 3, 4, 5, 6,

7, 8, 9, 12

Manhattan Cmty. Access Corp.

v. Halleck,

139 S. Ct. 1921 (2019) .......................... 9, 10, 12, 13

Paeste v. Gov’t of Guam,

798 F.3d 1228 (9th Cir. 2015) ................................ 5

Reed v. Town of Gilbert,

576 U.S. 155 (2015) .............................................. 10

Screws v. United States,

325 U.S. 91 (1945) ................................................ 12

United States v. Franklin,

904 F.3d 793 (9th Cir. 2018) .................................. 5

INTRODUCTION

Respondents’ brief in opposition fails to refute the

circuit split. Respondents concede that the Ninth

Circuit expressly disagreed with the Sixth Circuit’s

legal test for determining when public officials’ use of

personal social-media accounts constitutes state

action. They nevertheless assert that the Sixth

Circuit would have agreed with the Ninth Circuit’s

state-action finding on the facts here. Tellingly, the

Ninth Circuit never said that. And the Sixth Circuit

deemed irrelevant the primary fact Respondents

emphasize. They fixate on the Board’s generic

responsibility to communicate with the public about

the District’s work. The Sixth Circuit, by contrast,

held that the official must either possess a specific

state-law duty to communicate with the public using

the social-media account or wield state-law authority

in operating the account. Respondents tacitly admit

that neither element is satisfied here.

Respondents’ opposition brief likewise fails to

rehabilitate the Ninth Circuit’s merits decision.

Respondents ignore that government employees have

both official and personal reasons to communicate

with the public about their jobs. While such civic

engagement may be part of doing their jobs well, it

also furthers their independent interest as private

citizens in speaking on matters of public concern—

including as candidates for re-election trying to

persuade their constituents that they have done

their jobs well. The only way to disentangle whether

such social-media activity is governmental rather

than personal is to determine whether governmental

resources are used or the government itself is

responsible for the message. The Ninth Circuit’s

refusal to draw that line abridges public officials’

own individual liberties, by deploying the First

Amendment to constrain rather than protect their

private speech.

Respondents’ opposition brief also fails to identify

any vehicle problem. Respondents tacitly concede

that the state-action question is squarely presented.

Although they object that Petitioners have not

sought review of the additional question whether

they violated First Amendment standards, that is a

feature, not a bug: this Court can cleanly resolve the

threshold state-action issue on which the circuits

have split. Indeed, Respondents’ discussion of how to

craft constitutional social-media editorial policies for

governmental pages starkly illustrates the burden on

Petitioners’ speech imposed by the Ninth Circuit’s

state-action error.

In sum, certiorari should be granted in this case.

And Petitioners respectfully request that the Court

do so at its January 6, 2023 Conference. Prompt

review is necessary to enable a decision reversing the

judgment below this Term—and thereby end the

ongoing irreparable harm that the lower courts have

inflicted on Petitioners by abridging their right to

communicate with their constituents without being

spammed by Respondents.

ARGUMENT

RESPONDENTS FAIL TO REFUTE

ACKNOWLEDGED CIRCUIT SPLIT

THE

Respondents do not and cannot dispute that the

Ninth Circuit expressly rejected the Sixth Circuit’s

legal test, and that the Sixth Circuit expressly

rejected the legal test adopted by the Second, Fourth,

and Eighth Circuits, and by the Ninth Circuit

thereafter. Pet. 2-3, 12-18. Respondents thus are

left to argue that the difference in legal tests

articulated was immaterial, and that the Sixth and

Ninth Circuits would reach the same result on the

facts of each case. That argument mischaracterizes

both courts’ decisions.

A. Respondents implausibly contend that the

Ninth and Sixth Circuits did not really mean it when

each refused to apply the other’s legal test.

Respondents assert that the courts used “different

verbal formulations” of the same standard, BIO 19,

and that they at most disagreed “on a subsidiary

point” about whether off-duty-police cases were

“analogous,” BIO 18. But the disagreement was far

more fundamental, and the courts made that clear.

The Ninth Circuit acknowledged that, “‘instead of

examining a social media page’s appearance or

purpose,’” the Sixth Circuit “‘focused on the actor’s

official duties and use of government resources ….’”

Pet.App. 35a (quoting Lindke v. Freed, 37 F.4th

1199, 1206 (6th Cir. 2022)) (cleaned up). And the

Ninth Circuit further acknowledged that the Sixth

Circuit had affirmatively “‘parted ways’” with the

Second, Fourth, and Eighth Circuits. Id. (quoting

Lindke, 37 F.4th at 1206) (cleaned up).

Rather than denying or minimizing any difference,

the Ninth Circuit affirmatively admitted that the

Sixth Circuit had adopted a “different analysis,” and

it candidly “decline[d] to follow the Sixth Circuit’s

reasoning,” instead “follow[ing] the mode of analysis

of the Second, Fourth, and Eighth Circuits.”

Pet.App. 35a-36a. Accordingly, the Ninth Circuit

found state action because Petitioners “clothed their

pages in the authority of their offices and used their

pages to communicate about their official duties.”

Pet.App. 26a. It so held despite recognizing that

Petitioners created their publicly accessible socialmedia accounts “to promote their political

campaigns,” Pet.App. 6a, and that using their

accounts to communicate with their constituents was

“not required by[] their official positions,” Pet.App.

20a, or “fund[ed] or authoriz[ed]” by the District,

Pet.App. 26a. So the Ninth Circuit did not and could

not hold that the accounts “derive[d] from the duties

of [Petitioners’] office[s]” or “depend[ed] on [their]

state authority,” as the Sixth Circuit requires.

Lindke, 37 F.4th at 1204.

Indeed, the Ninth Circuit neither suggested that

the Sixth Circuit would reach the same result on

these facts nor distinguished Lindke on its facts.

These omissions are conspicuous because the panel

expressly denied a conflict with Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021). The panel asserted that

Campbell’s “general approach is in accord with ours,”

despite questioning whether “it was correctly decided

on its facts.” Pet.App. 34a n.11. If Judge Berzon had

believed that no circuit conflict existed because her

opinion could be reconciled with Judge Thapar’s

opinion in Lindke, she would have said so. See, e.g.,

United States v. Franklin, 904 F.3d 793, 802-03

(9th Cir. 2018); Paeste v. Gov’t of Guam, 798 F.3d

1228, 1234 (9th Cir. 2015). The opinion’s silence on

that score speaks volumes.

B. Respondents fall well short of showing that

“[t]he Sixth Circuit would agree with the Ninth

Circuit that [Petitioners] here were acting under

color of law.” BIO 12. Unlike Judge Berzon,

Respondents misconstrue Lindke.

Respondents’ principal claim is that Petitioners’

social-media activity would satisfy the Sixth Circuit’s

“duty” test because the Board’s bylaws exhort

Trustees to “‘ensure that the [D]istrict is responsive’

and ‘involve[] the community’ in decision-making.”

BIO 13; cf. BIO 2, 15 (citing a state statute giving the

Board the authority, not the duty, to “‘[i]nform … the

citizens of the district’”). The Sixth Circuit, however,

expressly refused to find state action based on the

analogous acknowledgment of the City Manager that

“‘regular communication … is essential to good

government.’” Lindke, 37 F.4th at 1205. Instead,

the Sixth Circuit’s “duty” test focused more narrowly

on whether “state law requires an officeholder to

maintain a social-media account.”

Id. at 1203

(emphasis added). There, “no state law, ordinance,

or regulation compelled [the City Manager] to

operate his Facebook page” or “task[ed] [him] with

social-media activity.” Id. at 1204-05. So too here,

the Ninth Circuit admitted that Petitioners’ “use of

their social media accounts was … not required by[]

their official positions.” Pet.App. 20a; see Pet. 8

(District played no role in pages’ operation).

The evidence Respondents invoke to demonstrate

Petitioners’ “duty” confirms that it “proves too much”

in the Sixth Circuit’s view. Lindke, 37 F.4th at 1205.

Respondents stress that Petitioners “testified that

receiving feedback from constituents is an important

part of their governmental duties.” BIO 13. But that

is always true for public officials, whether or not

codified in law or policy. That truism “can’t render

every communication state action.” Lindke, 37 F.4th

at 1205. Instead, Petitioners communicate with the

public in a governmental capacity when they interact

with citizens through Board meetings and other

official channels of communication, Pet.App. 61a, not

when they use personal social-media accounts that

they created and maintained without any direction,

funding, support, or other involvement by the

District, Lindke, 37 F.4th at 1205.

Respondents retreat to the contention that the

Sixth Circuit would deem Petitioners to be exercising

“an apparent duty” given their pages’ “official”

indicia. BIO 15 (cleaned up). But that court used

“apparent duty” to cover situations where an official

acts (rightly or wrongly) as if “operating the account

is within her job duties,” which can be evidenced, for

example, by “her use of state funds.”

Lindke,

37 F.4th at 1204. Here, by contrast, Petitioners have

operated their accounts as personal campaign pages,

not governmental pages. Pet. 30-32. As the Eighth

Circuit recognized, “[t]he Twitter page of a political

candidate does not convert itself into an official page

just because the candidate chooses a handle that

reflects the office she is pursuing.”

Campbell,

983 F.3d at 827. Likewise, the term “official page” on

a public figure’s social-media account designates

authenticity, not governmental status: the rapper TBone, for example, does not speak for any

government.

See @tboneoficial_, twitter.com/

tboneoficial_ (last visited Dec. 19, 2022).

The Ninth Circuit itself did not claim that

Petitioners acted as if they believed they had an

“apparent duty” to operate their pages even apart

from their personal political interests; it instead held

that the pages’ appearance and content conveyed

apparent authority to the public. See Pet.App. 26a.

The Sixth Circuit, however, correctly rejected that

conclusion, recognizing that “posts do not carry the

force of law simply because the page says it belongs

to a person who’s a public official.” Lindke, 37 F.4th

at 1206; see Pet. 28-30.

Respondents nevertheless argue that the Sixth

Circuit’s “authority” test is also satisfied because

Petitioners were informing the public about the

Board’s work, including by sharing “information that

they likely obtained before the general public by

virtue of their positions on the Board.” BIO 15. But

the City Manager in Lindke likewise posted about

“administrative directives,” and the Sixth Circuit’s

state-action denial did not rest on any finding that

those policies had already been officially disclosed.

37 F.4th at 1201, 1205. Instead, the court equated

use of state authority with “use of government

resources or state employees.” Id. at 1206. Again,

the Ninth Circuit conceded that nothing of the sort

occurred here. Pet.App. 26a; accord Pet. 8.

C. Finally, Respondents fare no better in claiming

that “the Ninth Circuit would agree with the Sixth

Circuit that there was no state action in Lindke.”

BIO 16. The panel below never said that, and it

plainly disagreed with Lindke not just in reasoning

but in result.

Respondents assert that Lindke’s facts would not

satisfy the Ninth Circuit’s “appearance” test because

the City Manager “had only one page,” primarily

used it for “entirely personal” posts, and did not

“request feedback” from constituents. BIO 16-17.

None of this, however, negates that the City

Manager’s page still “reflect[ed] his [official] title,”

provided official “contact information,” and posted

about official “directives” and “policies.” Lindke,

37 F.4th at 1201. Such “official identifications” and

“regular[] post[s]” about “the work of the

[government]” are the same features of “appearance

and content” that led the Ninth Circuit to treat

Petitioners’ accounts as “official channels of

communication.” Pet.App. 23a.

Respondents also insist that Lindke’s facts would

not satisfy the Ninth Circuit’s “purpose” test because

the City Manager did not “intend[]” his page to be an

“official” governmental page. BIO 17. But neither

did Petitioners, as the Ninth Circuit never disputed

that they intended their pages to promote their

political campaigns for re-election. Pet.App. 26a.

The Ninth Circuit deemed that intent irrelevant,

however, because their posts nevertheless “concerned

official District business or promoted the District

generally.” Id. The same conclusion would follow for

the City Manager’s posts, which publicized

“administrative directives he issued” and “policies he

initiated.” Lindke, 37 F.4th at 1201. Indeed, the

Ninth Circuit strongly suggested that even the

campaign page in Campbell was “a tool of

governance,” see Pet.App. 34a & n.11, making it

clearer still that the Ninth Circuit would also apply

that label to the City Manager’s page in Lindke.

In all events, even assuming the Ninth Circuit

would not have found state action in Lindke, there is

still a circuit split because the Sixth Circuit would

not have found state action here. See supra at Part

I.B. So if anything, Respondents’ argument is a

reason why this case is a better vehicle than Lindke

to resolve the split.

Petitioners thus respectfully submit that, rather

than awaiting a petition in Lindke, the Court should

promptly consider this petition at its January 6, 2023

Conference. Deferring review would delay a decision

until next Term, substantially extending the period

that the erroneous state-action holding below will

“restrict[] individual liberty” by constraining rather

than protecting Petitioners’ communications with the

public. Manhattan Cmty. Access Corp. v. Halleck,

139 S. Ct. 1921, 1934 (2019). Given that “[t]he loss

of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes

irreparable injury,” Elrod v. Burns, 427 U.S. 347, 373

(1976), the Court should grant certiorari now—the

circuit split is undeniable, and there is no vehicle

problem with this case, as we demonstrate next.

II. RESPONDENTS FAIL

VEHICLE PROBLEM

IDENTIFY

ANY

Respondents do not and cannot dispute that the

question presented was squarely pressed and passed

upon below, was resolved on undisputed facts, and

will be legally dispositive here. Pet. 34. Given all

that, their few vehicle objections are makeweights.

Respondents principally criticize this vehicle

because the “narrow Question Presented” covers only

the “state-action doctrine,” not the “substantive First

Amendment law” addressing access to governmental

social-media accounts. BIO 22-23. That objection is

backwards. The circuit split involves the threshold

state-action question, not application of wellestablished public-forum doctrine to pages properly

treated as governmental.

Moreover, although Respondents emphasize that

governments retain some “tools” to constitutionally

“exercise editorial control over their social media

pages,” BIO 23, the limited options underscore why

officials’ personal accounts for engaging with the

public should stay free from the First Amendment’s

restrictions. For example, Respondents highlight

that governments can avoid “harassment, trolling[,]

and hate speech” on their Facebook pages by

preventing the entire public from responding with

anything besides non-verbal reactions. Id. But that

is a Hobson’s choice for “citizen[s] who work[] for the

government” and seek to use their personal accounts

to “speak[] as citizens about matters of public

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

(2006). Nor can officials bar such abuse through

“clear rules of etiquette” under reasonable “time,

place, and manner” rules, BIO 23-24, because

content-based restrictions do not qualify, Reed v.

Town of Gilbert, 576 U.S. 155, 171 (2015).

Respondents’ purported solutions instead illustrate

the problem created by invading the “robust sphere

of individual liberty” protected by state-action

doctrine. Halleck, 139 S. Ct. at 1934.

Respondents similarly err in asserting that

Petitioners “have very little at stake.” BIO 21.

Although the decision below does not reach

Petitioners’ private social-media profiles restricted to

family and friends, BIO 22, Petitioners are elected

politicians seeking to regain their own First

Amendment right to communicate with constituents

using publicly accessible social-media accounts that

they personally operate without any governmental

involvement, Pet.App. 26a.

The decision below

requires such officials to either (1) expose themselves

to online abuse, (2) impose blunderbuss restrictions

on online comments, or (3) censor their own online

speech. Pet. 25-26, 28-29, 31-32. Before the district

court entered judgment, Petitioners chose the second

option for Facebook by applying “word filters that

essentially prevent everyone … from commenting on

their posts.” BIO 21. But as the Ninth Circuit held,

a vital controversy persists, because reversing the

judgment would enable Petitioners to resume

blocking abusive commenters like Respondents while

communicating freely with the rest of the public (and

also because such filters are unavailable on Twitter).

Pet.App. 16a-18a.

III. RESPONDENTS FAIL TO REHABILITATE THE

NINTH CIRCUIT’S ERRONEOUS DECISION

Respondents’ defense of the decision below

reprises the flaws permeating their opposition brief.

They contend that, because it is part of Petitioners’

jobs to “interact[] with their constituents,” it is

immaterial that the District “neither required, nor

controlled, nor facilitated [Petitioners’] social media

accounts.” BIO 26. Critically, however, Respondents

beg the question by insisting that Petitioners were

“doing their jobs” when operating the social-media

pages. Id. “[P]rovid[ing] a forum for speech” about

the Board’s work is “not a traditional, exclusive

public function.” Halleck, 139 S. Ct. at 1930. Public

officials also have a private interest in “speaking as

citizens” to provide “well-informed views” as part of

“civic discussion.”

Garcetti, 547 U.S. at 419.

Candidates for re-election have an additional private

interest in “position[ing] [themselves] for more

electoral success.” Campbell, 986 F.3d at 826. Such

non-governmental interests fall within “the ambit of

… personal pursuits.” Screws v. United States,

325 U.S. 91, 111 (1945) (plurality op.).

And

Respondents disregard that these are the very

“motivation[s]” behind Petitioners’ pages. Compare

BIO 31, with supra at 6-7.

In short, “public officials aren’t just public

officials—they’re individual citizens, too.” Lindke,

37 F.4th at 1203. The only way to disentangle

whether an official “operated his Facebook page in

his personal capacity” rather than “his official

capacity” is to determine whether the page “derives

from the duties of his office” or “depends on his state

authority”—i.e., whether the government “compelled

[him] to operate [the] page” or he used “government

funds” or “government employees to maintain [it].”

Id. at 1204-05. Otherwise, the official’s social-media

activity cannot “be fairly treated as that of the State

itself.” Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288 (2001).

Accordingly, Respondents go astray in repeatedly

invoking cases involving assertions of police power.

Compare BIO 27, 29, 31, with supra at 7. And their

suggestion that “elected official[s]” act under color of

law when merely placing “individual phone calls to

each constituent” is self-refuting. BIO 26. Likewise,

although they profess ignorance about how a public

official could operate a “townhall discussion” about

his administration in a personal capacity, BIO 32,

they ignore that the official could employ solely his

own personal resources (including property and

employees), to further his own interests as an

electoral candidate and concerned citizen, Pet. 24-25.

Respondents thus fail “[t]o draw the line between

governmental and private” for the acts of individuals

who are public officials. Halleck, 139 S. Ct. at 1926.

CONCLUSION

The certiorari petition should be granted.

December 20, 2022

Respectfully submitted,