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

No. 22-324

In the Supreme Court of the United States

MICHELLE O’CONNOR-RATCLIFF, ET AL., PETITIONERS

v.

CHRISTOPHER GARNIER AND KIMBERLY GARNIER

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

DANIEL TENNY

JENNIFER L. UTRECHT

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether and under what circumstances a schoolboard official engages in state action under the First

and Fourteenth Amendments when the official blocks a

member of the public from viewing or responding to

posts on a social-media account.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of argument ................................................................. 7

Argument:

A. Public officials who deny access to private property

engage in state action only if they exercise

government authority or perform a traditional and

exclusive public function ................................................. 10

B. Petitioners’ blocking of respondents was not state

action................................................................................. 20

C. The lower court’s contrary reasoning is

unpersuasive .................................................................... 24

D. An overly expansive theory of state action in this

context would undermine, not promote, First

Amendment values .......................................................... 27

Conclusion ................................................................................... 31

TABLE OF AUTHORITIES

Cases:

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ............... 16

Amalgamated Food Employees Union Local 590 v.

Logan Valley Plaza, Inc., 391 U.S. 308 (1968) ................ 16

American Manufacturers Mutual Insurance Co. v.

Sullivan, 526 U.S. 40 (1999) ............................ 11, 13, 21, 25

Biden v. Knight First Amendment Institute,

141 S. Ct. 1220 (2021) ..................................................... 1, 22

Blum v. Yaretsky, 457 U.S. 991 (1982) ................................ 27

Branti v. Finkel, 445 U.S. 507 (1980) .................................. 13

Brentwood Academy v. Tennessee

Secondary School Athletic Association,

531 U.S. 288 (2001)................................................................ 2

(III)

IV

Cases—Continued:

Page

Burlington Industries, Inc. v. Ellerth,

524 U.S. 742 (1998).............................................................. 23

Burton v. Wilmington Parking Authority,

365 U.S. 715 (1961)........................................................ 15, 19

Central Hardware Co. v. NLRB,

407 U.S. 539 (1972)......................................................... 15-17

Columbia Broadcasting System, Inc. v.

Democratic National Committee,

412 U.S. 94 (1973) ......................................................... 10, 17

Edmonson v. Leesville Concrete Co.,

500 U.S. 614 (1991).............................................................. 12

Evans v. Newton, 382 U.S. 296 (1966) ..................... 12, 15, 19

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) ............ 4

Garcetti v. Ceballos, 547 U.S. 410 (2006) ............................. 29

Georgia v. McCollum, 505 U.S. 42 (1992) ....................... 2, 12

Gilmore v. City of Montgomery,

417 U.S. 556 (1974)............................................ 14, 15, 19, 25

Griffin v. Maryland, 378 U.S. 130 (1964) ..................... 26, 28

Hudgens v. NLRB, 424 U.S. 507 (1976) .............................. 16

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974).............................................................. 14

Kolstad v. American Dental Association,

527 U.S. 526 (1999).............................................................. 23

Lane v. Franks, 573 U.S. 228 (2014) .................................... 23

Lebron v. National Railroad Passenger Corp.,

513 U.S. 374 (1995).............................................................. 18

Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022),

cert. granted, No. 22-611 (Apr. 24, 2023) ................... 24, 26

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) .................. 16, 17

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982)............................... 2, 4, 10, 11, 14, 25, 29

V

Cases—Continued:

Page

Manhattan Community Access Corp. v. Halleck,

139 S. Ct. 1921 (2019) ............. 4, 10-12, 15, 17-19, 21, 27, 28

Marsh v. Alabama, 326 U.S. 501 (1946) ........................ 16, 18

Minnesota Voters Alliance v. Mansky,

138 S. Ct. 1876 (2018) ......................................................... 30

Monell v. Department of Social Services,

436 U.S. 658 (1978).............................................................. 29

NCAA v. Tarkanian, 488 U.S. 179 (1988) ........................... 28

Naffee v. Frey, 789 F.3d 1030 (9th Cir. 2015) ..................... 24

Nixon v. Condon, 286 U.S. 73 (1932) ............................. 12, 28

Pickering v. Board of Education, 391 U.S. 563 (1968) ...... 29

Pleasant Grove City v. Summum,

555 U.S. 460 (2009).............................................................. 30

Polk County v. Dodson, 454 U.S. 312 (1981) .................. 2, 13

PruneYard Shopping Center v. Robins,

447 U.S. 74 (1980) ............................................................... 16

Public Utilities Commission v. Pollak,

343 U.S. 451 (1952).............................................................. 27

Rosenberger v. Rector & Visitors of University of

Virginia, 515 U.S. 819 (1995) ............................................ 17

Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) ........... 17

San Francisco Arts & Athletics, Inc. v. United

States Olympic Committee, 483 U.S. 522 (1987) ............. 18

Screws v. United States, 325 U.S. 91 (1945) ........... 14, 23, 25

Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022) ............. 29

Skinner v. Railway Labor Executives’ Association,

489 U.S. 602 (1989).............................................................. 27

Terry v. Adams, 345 U.S. 461 (1953) ................................... 12

United States v. Classic, 313 U.S. 299 (1941) ..................... 14

West v. Atkins, 487 U.S. 42 (1988) .......... 12, 13, 21, 22, 25, 27

VI

Constitution and statues:

Page

U.S. Const.:

Amend. I ............................... 1, 3, 4, 9-11, 13, 17, 21, 27-30

Amend. IV ........................................................................ 27

Amend. V .................................................................... 17, 27

Amend. VIII..................................................................... 27

Amend. XIV ............................................1, 4, 11, 17, 27, 28

Amend. XV ....................................................................... 28

18 U.S.C. 242 ............................................................................ 2

18 U.S.C. 912 .......................................................................... 27

42 U.S.C. 1983 ................................................................ 1, 3, 11

D.C. Code § 22-1406 (Supp. 2023) ........................................ 27

In the Supreme Court of the United States

No. 22-324

MICHELLE O’CONNOR-RATCLIFF, ET AL., PETITIONERS

v.

CHRISTOPHER GARNIER AND KIMBERLY GARNIER

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case presents the question whether and under

what circumstances a school-board member’s blocking

of an individual from a social-media account constitutes

state action under the First and Fourteenth Amendments. The United States has a substantial interest in

the Court’s resolution of that question. Federal government officials also use social-media accounts, and the

same constitutional state-action analysis applicable to

petitioners would apply to federal government officials

and employees. See, e.g., Biden v. Knight First Amendment Institute, 141 S. Ct. 1220 (2021). In addition, the

Court’s resolution of this case would have implications

for the closely related question whether petitioners

acted “under color of ” state law within the meaning

of 42 U.S.C. 1983 when they blocked respondents. See

(1)

2

Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18

(1982). The United States has authority to bring criminal prosecutions under 18 U.S.C. 242, which makes it a

criminal offense to act willfully and “under color of any

law” to deprive a person of rights protected by the Constitution or laws of the United States. The decision in

this case could affect that authority because the Court

has interpreted “under color of ” law to have the same

meaning under Section 242 as it does under Section

1983. See Lugar, 457 U.S. at 928 n.9. The United States

has participated as amicus curiae in previous cases raising state-action and color-of-law questions. See, e.g.,

Brentwood Academy v. Tennessee Secondary School

Athletic Association, 531 U.S. 288 (2001); Georgia v.

McCollum, 505 U.S. 42 (1992); Polk County v. Dodson,

454 U.S. 312 (1981).

STATEMENT

1. Petitioners are or were elected members of the

Poway Unified School District Board of Trustees. Pet.

App. 55a, 59a.* Before they were first elected in 2014,

petitioners created publicly accessible Facebook pages

to promote their respective candidacies. Id. at 59a-60a;

see C.A. E.R. 1859-1865, 1969-1979. Facebook is a

social-media platform that enables accountholders to

create online “posts” on which other users can comment. Pet. App. 63a. After being elected, petitioners

used their public Facebook pages to post information

about issues related to the school board. Id. at 60a. Petitioner O’Connor-Ratcliff also created a public account

* Petitioners’ opening brief states (at 7 n.4) that petitioner Zane’s

term “expired in December 2022,” but that petitioner O’ConnorRatcliff ’s term “will not expire until December 2026.”

3

on Twitter, another social-media platform, to “tweet”

information about the school board. Ibid.; see id. at 70a.

Petitioners “testified that they intended their Facebook and Twitter pages to be used in a ‘bulletin board’

manner—providing one-way communication from themselves to their constituents.” Pet. App. 60a. But petitioners also “used Facebook for interactive purposes by

replying to comments on their posts from other constituents about [school-board] issues.” Ibid. Petitioners

alone created posts and responded to comments; no

other school-district official or employee “regulated,

controlled, or spent money maintaining any of [petitioners’] social media pages.” Id. at 100a.

Respondents’ children are students in the Poway

Unified School District. Pet. App. 59a. Respondents

posted many comments on petitioners’ public Facebook

and Twitter pages related to the school district. Id. at

73a. None contained profanity or threats of violence,

but they were “often repetitious”; examples include

making “the same comment on forty-two posts” on

Facebook and “repeating the same reply 226 times” on

Twitter. Ibid.; see, e.g., C.A. E.R. 1134-1189.

Petitioners eventually “blocked” respondents from

petitioners’ public pages on Facebook and Twitter. See

Pet. App. 76a-78a. Both Facebook and Twitter allow accountholders to block individual users on the platforms.

See id. at 70a-73a. On Facebook, a blocked user can

view the accountholder’s posts but cannot comment on

or react to those posts. Id. at 70a. On Twitter, a blocked

user can neither view nor comment on the accountholder’s public tweets while logged in, but can view the

tweets when logged out. Id. at 72a-73a. Respondents

filed suit under 42 U.S.C. 1983, alleging that the blocking violated their First Amendment rights of free

4

speech and to petition the government, as incorporated

against the States by the Fourteenth Amendment, see

Compl. ¶¶ 9-13.

2. The district court entered judgment in favor of respondents on their federal constitutional claims. Pet.

App. 55a-97a. At summary judgment, the court held

that petitioners were entitled to qualified immunity on

respondents’ claims for damages. See id. at 108a-110a.

Following a bench trial, the court entered declaratory

and injunctive relief against petitioners. See id. at 55a97a.

As relevant here, the district court held that petitioners’ conduct constituted “state action.” Pet. App. 81a83a; see id. at 110a-115a. “[M]ost rights secured by the

Constitution are protected only against infringement by

governments,” Flagg Brothers, Inc. v. Brooks, 436 U.S.

149, 156 (1978), including those secured by the First and

Fourteenth Amendments, see Manhattan Community

Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019).

Accordingly, those constitutional guarantees “can be violated only by conduct that may be fairly characterized

as ‘state action.’ ” Lugar v. Edmondson Oil Co., 457

U.S. 922, 924 (1982).

The district court held that petitioners’ blocking was

state action because petitioners “could not have used

their social media pages in the way they did but for their

positions on [the school board].” Pet. App. 83a (citation

omitted); see id. at 115a. The court reasoned that “the

content of many of their posts was possible because they

were ‘clothed with the authority of state law.’ ” Id. at

83a (citation omitted); see id. at 114a-115a. The court

also “adopt[ed] the reasoning and conclusions articulated” at the summary-judgment stage, id. at 83a, when

the court (per a different district judge) had found that

5

petitioners “ ‘swathed their social media pages in the

trappings of their office’ ” by listing their positions as

board members and identifying themselves as government officials, as well as by using (in the case of petitioner O’Connor-Ratcliff ) a school-district email address and (in the case of petitioner Zane) a picture of a

school-district sign, id. at 115a (brackets and citation

omitted). “Because [petitioners] could not have used

their social media pages in the way they did but for their

positions on [the board],” the court concluded, “their

blocking of [respondents] satisfies the state-action requirement.” Ibid.

3. The court of appeals affirmed. Pet. App. 1a-54a.

As relevant here, the court of appeals agreed that

petitioners’ blocking of respondents constituted state

action. Pet. App. 18a-36a. The court applied what it

called a “ ‘nexus test,’ ” under which it asked 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.’ ” Id. at

20a (citation omitted). The court found such a “nexus”

here because petitioners’ “use of their social media accounts was directly connected to, although not required

by, their official positions.” Ibid. The court relied on

three such connections, drawn from circuit precedent

addressing when an off-duty state employee (such as a

police officer) acts under color of state law. Id. at 22a26a.

First, the court of appeals found that petitioners

“ ‘purported to act in the performance of their official

duties’ through the use of their social media pages” because “both through appearance and content, [petitioners] held their social media pages out to be official channels of communication with the public about the work of

6

the [school board].” Pet. App. 22a-23a (brackets, citation, and ellipsis omitted); see id. at 23a (observing that

petitioners’ pages identified them as government officials and listed, among other things, their official titles).

Second, the court of appeals found that petitioners’

“presentation of their social media pages as official outlets facilitating their performance of their [schoolboard] responsibilities ‘had the purpose and effect of influencing the behavior of others’ ” because they “actively solicited constituent input about official [schooldistrict] matters.” Pet. App. 23a-24a (citation omitted);

see id. at 24a (observing that petitioners posted surveys

and sought feedback from constituents, among other

things).

Third, the court of appeals found that petitioners’

“management of their social media pages ‘related in

some meaningful way’ to their ‘governmental status’

and ‘to the performance of their duties’ ” because their

“use of social media to keep the public apprised of

goings-on at [the school district] accords with the

Board’s power to ‘inform and make known to the citizens of the district, the educational programs and activities of the schools therein.’ ” Pet. App. 24a (brackets

and citations omitted); see ibid. (observing that petitioners posted information about issues discussed at

board meetings, the selection of a new superintendent,

the district’s budget, and similar items “relat[ing] directly to [their] duties”).

The court of appeals rejected petitioners’ contention

that “their use of social media did not constitute state

action because the pages * * * were personal campaign

pages designed only to advance their own political careers.” Pet. App. 26a. The court found that petitioners’

“posts about * * * school activities generally do not

7

read as advertising ‘campaign promises’ kept or touting

their own political achievements,” and that “[a]fter

their election in 2014, [petitioners] virtually never

posted overtly political or self-promotional material.”

Ibid. The court also gave no weight to the fact that the

school district “provided no financial support or authorization for the pages” because that was not apparent to

the public from petitioners’ pages, which “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.’ ” Ibid. (citation

omitted).

SUMMARY OF ARGUMENT

A. State action subject to constitutional scrutiny

generally requires the exercise of a right or privilege

created by the government by someone who may fairly

be described as a state actor. Being a public official is,

however, neither necessary nor sufficient to engage in

state action. A private entity might engage in state action when the government compels it to act; when it engages in joint action with the government; or when it

carries out a traditional, exclusive public function. Conversely, because every public official is also a private

person, state action exists only when the official exercises power that she possesses by virtue of her position

or because she is clothed with government authority.

This Court has consistently refused to set forth a comprehensive test for state action and has instead articulated different factors or tests applicable in different

contexts.

One frequently recurring context is when the challenged conduct involves a denial of access to or use of

property (including intangible property), such as refusing to serve a customer or excluding someone from a

8

forum. In that context, the existence of state action

generally depends on whether the government itself

owns or controls the property to which access has been

denied. When public property is at issue, a denial of

access by a public official generally will be state action;

a denial by a private person may be state action depending on the degree of governmental involvement.

When private property—that is, property over

which the government lacks ownership or control—is at

issue, however, a denial of access will rarely be found to

be state action. In the relatively rare circumstance of a

denial of access to private property by a public official,

courts should not find state action unless the official is

invoking official powers or exercising a traditional and

exclusive public function.

B. Here, the school board indisputably lacks ownership or control over petitioners’ social-media accounts;

petitioners created their Facebook pages before taking

office and they will retain exclusive control over those

accounts when they leave. In operating those accounts,

petitioners did not exercise any powers of their offices.

Their power to block respondents, for example, flowed

from their control over the account features offered by

Facebook and Twitter, irrespective of their status as

school-board members. Nor did petitioners engage in a

traditional, exclusive public function. Communicating

with the public about matters of public concern is a traditional governmental function—but it is not exclusive

to the government.

That the content of petitioners’ social-media pages

reflected or derived from their governmental status is

immaterial. The same could be said of any official’s

speech at a campaign rally or fundraising dinner, but

that does not convert those quintessentially nongovern-

9

mental activities into state action. Likewise, that petitioners were in some sense doing their jobs is irrelevant. Whether a public official’s conduct is within the

scope of employment generally varies from jurisdiction

to jurisdiction and does not dictate whether that conduct is state action for federal constitutional purposes.

C. In erroneously finding state action, the court of

appeals relied on a multifactor test derived from its own

precedent about when off-duty employees (such as police officers) act under color of law. That test is inapposite in this context, where the inquiry should turn on the

nature of the property to which access has been denied.

For example, whether the defendant acted under pretense of law or influenced the behavior of others might

be relevant to contexts involving off-duty police officers

who coerce cooperation by flashing their badges. Petitioners’ solicitation of comments and feedback on their

social-media pages, in contrast, did not coerce anyone

into doing anything.

For the same reason, the court of appeals’ reliance

on the “appearance” or “trappings” of petitioners’

social-media pages was misplaced. Those considerations might be relevant in the context of police officers

because the public is obligated to obey officers, whom

we identify by their appearance and trappings. That is

one reason why it is a crime to impersonate an officer.

Appearance does not, however, play the same role in the

circumstances here. Nobody is required to obey a

school-board member’s request to comment on her

Facebook posts, no matter how official-looking the page

might appear.

D. As this Court has recognized, an overly expansive

state-action theory would be especially troublesome in

the First Amendment context.

Subjecting large

10

amounts of the speech of government personnel to constitutional restrictions could both chill that speech and

induce government employers to regulate the content

of that speech more extensively. Those outcomes would

undermine, not promote, First Amendment values.

At the same time, an expansive state-action theory

would provide little benefit. Any speech found to be

state action is arguably also government speech, to

which constitutional speech constraints (including the

ban on viewpoint discrimination) do not apply. And

even if an official were found to have created a forum

for debate, the official could permissibly impose reasonable content- and speaker-based restrictions in that forum, such as excluding anyone who made repetitive or

nonresponsive comments. As a practical matter, therefore, the end result of much litigation would likely be

the same as under a more constrained theory of state

action.

ARGUMENT

A. Public Officials Who Deny Access To Private Property

Engage In State Action Only If They Exercise Government Authority Or Perform A Traditional And Exclusive Public Function

1. The First Amendment’s command “[t]hat ‘Congress shall make no law abridging the freedom of

speech, or of the press’ is a restraint on government action, not that of private persons.” Columbia Broadcasting System, Inc. v. Democratic National Committee,

412 U.S. 94, 114 (1973) (plurality opinion) (citation and

ellipsis omitted); see Manhattan Community Access

Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019) (“The Free

Speech Clause of the First Amendment constrains governmental actors and protects private actors.”); Lugar

v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (“Be-

11

cause the [Fourteenth] Amendment is directed at the

States, it can be violated only by conduct that may be

fairly characterized as ‘state action.’ ”). Similarly, 42

U.S.C. 1983 authorizes a cause of action to enforce constitutional guarantees only against persons who act

“under color of ” state law. Those limitations generally

“converge” when, “as here, deprivations of rights under

the Fourteenth Amendment are alleged.” American

Manufacturers Mutual Insurance Co. v. Sullivan, 526

U.S. 40, 50 n.8 (1999).

The distinction between state action and private

conduct is vital to the correct application of the First

Amendment, as incorporated against the States by the

Fourteenth Amendment, and to the preservation of individual liberty. “[S]tate action requires both an alleged

constitutional deprivation ‘caused by the exercise of

some right or privilege created by the State or by a rule

of conduct imposed by the State or by a person for

whom the State is responsible,’ and that ‘the party

charged with the deprivation must be a person who may

fairly be said to be a state actor.’ ” American Manufacturers, 526 U.S. at 50 (citation omitted). Although those

“two principles are not the same,” they are interrelated

and generally “collapse into each other” when the defendant is a public official rather than a private party.

Lugar, 457 U.S. at 937.

2. Under those principles, being a public official is

neither necessary nor sufficient to engage in state action. It is not necessary because “a private entity can

qualify as a state actor in a few limited circumstances.”

Manhattan Community Access, 139 S. Ct. at 1928. Examples include “when the government compels the private entity to take a particular action” and “when the

government acts jointly with the private entity.” Ibid.

12

Those circumstances are less relevant in the context of

this case.

Of more relevance here, “a private entity may be

considered a state actor when it exercises a function

‘traditionally exclusively reserved to the State’ ” or

when the government has “outsourced one of its constitutional obligations to a private entity.” Manhattan

Community Access, 139 S. Ct. at 1926, 1929 n.1 (citation

omitted). For instance, a private political party engages

in state action when it conducts public elections, Nixon

v. Condon, 286 U.S. 73, 84 (1932); see Terry v. Adams,

345 U.S. 461 (1953); a criminal defendant engages in

state action when exercising peremptory challenges to

exclude jurors, Georgia v. McCollum, 505 U.S. 42, 5055 (1992); see Edmonson v. Leesville Concrete Co., 500

U.S. 614, 621-622 (1991) (same, for civil defendants);

and a prison doctor engages in state action when treating prisoners, see West v. Atkins, 487 U.S. 42, 56 (1988);

see generally Manhattan Community Access, 139 S. Ct.

at 1929 (cataloging other examples).

In short, “when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.” Evans v. Newton, 382 U.S. 296, 299 (1966). So

if a federal agency were to use someone’s personal

Facebook page (instead of a government website such

as regulations.gov) to conduct notice-and-comment

rulemaking, the accountholder’s actions with respect to

those posts and comments—including the blocking of a

member of the public from viewing or commenting on

the proposed regulation—would fairly be characterized

as state action.

13

But merely being a public official is not sufficient to

establish0 that the official has engaged in state action,

for every public official is also a private citizen and not

all actions taken by such a person require the exercise

of “some right or privilege [or rule of conduct] created

[or imposed] by the State.” American Manufacturers,

526 U.S. at 50 (citation omitted); see id. at 51 (explaining that courts should “begin[] by identifying ‘the specific conduct of which the plaintiff complains’ ”) (citation

omitted). For example, although a public defender

might engage in state action when making personnel decisions for the office, see Branti v. Finkel, 445 U.S. 507

(1980), she does not act under color of state law when

representing an indigent defendant because “state office and authority are not needed” to perform that “essentially * * * private function,” Polk County v. Dodson, 454 U.S. 312, 319 (1981). Similarly, the First

Amendment’s prohibition on viewpoint discrimination

does not require a public official to share the stage with

her political opponents at a campaign rally or fundraising dinner.

Instead, public officials engage in state action that is

subject to constitutional scrutiny only when they exercise “power ‘possessed by virtue of state law,’ ” such that

their actions are “made possible only because [they are]

clothed with the authority of state law.” West, 487 U.S.

at 49 (citation omitted). That standard is generally satisfied when a public official acts “in his official capacity”

or “exercis[es] his responsibilities pursuant to state

law.” Id. at 50. In contrast, actions taken by officials

“in the ambit of their personal pursuits”—that is, actions that require neither powers possessed by virtue of

state law nor being clothed with the authority of state

law—are “plainly excluded” from constitutional scru-

14

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

(plurality opinion); see United States v. Classic, 313

U.S. 299, 326 (1941).

3. Determining whether any particular conduct is an

exercise of government-granted authority or in the ambit of personal pursuits can be difficult, especially in the

abstract. Cf. Jackson v. Metropolitan Edison Co., 419

U.S. 345, 349-350 (1974) (“[T]he question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.”) (citation omitted); Gilmore v. City of Montgomery, 417 U.S. 556, 574 (1974) (observing that “the Court

has never attempted to formulate ‘an infallible test for

determining’ ” when conduct is state action) (citation

omitted). For that reason, rather than set forth a unified or comprehensive test for state action, this Court

“has articulated a number of different factors or tests,”

each to be applied “in different contexts.” Lugar, 457

U.S. at 939.

This case does not require the Court to fashion a new

test for state action because it arises in a frequently recurring context: The challenged conduct involves denying access to (or use of ) property, such as refusing to

serve a customer or excluding someone from a forum.

In that context, the existence of state action depends

critically on the nature of the property—specifically,

whether the government itself owns or controls the

property to which access has been denied.

When the government itself owns or controls the

property—that is, when public property is involved—

“the question of the existence of state action centers in

the extent of the [government’s] involvement in [the allegedly unconstitutional] actions by private agencies using public facilities, and in whether that involvement

15

makes the [government] ‘a joint participant in the challenged activity, which, on that account, cannot be considered to have been so “purely private” as to fall without the scope of the Fourteenth Amendment.’ ” Gilmore, 417 U.S. at 573 (citation omitted). For example,

this Court held that a restaurant located in a state facility had engaged in state action when it refused service

on the basis of a customer’s race because the lease

terms made clear that the “State ha[d] so far insinuated

itself into a position of interdependence with” the restaurant that it was effectively a “joint participant in the

challenged activity.” Burton v. Wilmington Parking

Authority, 365 U.S. 715, 725 (1961); see Evans, 382 U.S.

at 301 (similar, where a nominally private park was “an

integral part of the City of Macon’s activities” and “municipal control had become firmly established”). In contrast, “the mere use” by a private group of public facilities such as “parks, playgrounds, athletic facilities, amphitheaters, museums, zoos, and the like” does not itself

establish state action. Gilmore, 417 U.S. at 574. Thus,

if a private group rented a picnic pavilion at a local park

and excluded guests based on race, that would be unlikely to be state action.

When the government lacks ownership or control of

the property to which access has been denied—that is,

when it is private property—this Court has required a

higher showing to establish state action. “Before an

owner of private property can be subjected to the commands of the First and Fourteenth Amendments the

privately owned property must assume to some significant degree the functional attributes of public property

devoted to public use.” Central Hardware Co. v. NLRB,

407 U.S. 539, 547 (1972); cf. Manhattan Community Access, 139 S. Ct. at 1931 n.3 (suggesting that even that

16

might not be sufficient). Therefore, absent governmental compulsion or joint action, see, e.g., Adickes v. S.H.

Kress & Co., 398 U.S. 144, 171 (1970) (racially discriminatory exclusion is state action when “compelled by a

statutory provision or by a custom having the force of

law”), this Court has rarely found state action based on

a denial of access to private property over which the

government lacks ownership or control. And, of the two

cases in which it did, one is factually obsolete and the

other is no longer good law.

The first case was Marsh v. Alabama, 326 U.S. 501

(1946), which held that a private corporation that owned

a “company town” had engaged in state action when it

prohibited distribution of religious literature on a sidewalk. See id. at 506. The Court has since emphasized,

however, that Marsh involved the unusual “economic

anachronism” of a company town, and has explained

that its holding there relied on the principle that a State

“could not permit a corporation to assume the functions

of a municipal government and at the same time deny

First Amendment rights.” Central Hardware, 407 U.S.

at 545-546; see Lloyd Corp. v. Tanner, 407 U.S. 551, 561

(1972) (explaining that Marsh “involved an economic

anomaly of the past”).

The other case was Amalgamated Food Employees

Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S.

308 (1968), which held that a shopping center had engaged in state action when it sought to eject pro-union

picketers from its parking lot. See id. at 316-317. The

Court has since expressly overruled Logan Valley and

rejected its core rationale that opening up private property to the public subjects the property to constitutional

constraints on state action. Hudgens v. NLRB, 424 U.S.

507, 518 (1976); see PruneYard Shopping Center v. Rob-

17

ins, 447 U.S. 74, 81 (1980); Lloyd, 407 U.S. at 561-563.

As the Court observed in Central Hardware, the mere

fact that privately owned property is “ ‘open to the public’ ” is insufficient to convert the use of that property

into state action subject to the First and Fourteenth

Amendments, especially given that “[s]uch an argument

could be made with respect to almost every retail and

service establishment in the country.” 407 U.S. at 547.

The government is unaware of other decisions by this

Court holding that a denial of access to private property

over which the government lacks ownership or control

can constitute state action absent governmental compulsion or joint action.

The Court’s hesitation to find state action in that

context extends to cases in which the private property

at issue is intangible. Cf. Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1003 (1984) (explaining that the Fifth

Amendment applies equally to tangible and intangible

property); Rosenberger v. Rector & Visitors of University of Virginia, 515 U.S. 819, 830 (1995) (First Amendment applies equally to physical and “metaphysical” forums). For example, a federally licensed broadcaster

does not engage in state action when it refuses to sell

airtime based on the putative customer’s viewpoint

when “the Government is [neither] a ‘partner’ to the action of the broadcast licensee * * * nor is it engaged in

a ‘symbiotic relationship’ with the licensee, profiting

from the invidious discrimination of its proxy.” Columbia Broadcasting, 412 U.S. at 119 (plurality opinion) (citation omitted). Similarly, an operator of public-access

channels does not engage in state action when it refuses

to carry certain programming. See Manhattan Community Access, 139 S. Ct. at 1929. And a federally chartered corporation that has been granted exclusive use

18

of a trademark does not engage in state action when it

seeks to enforce that statutory right of exclusion. See

San Francisco Arts & Athletics, Inc. v. United States

Olympic Committee, 483 U.S. 522, 542-547 (1987). As

this Court has put it, “Benjamin Franklin did not have

to operate his newspaper as ‘a stagecoach, with seats for

everyone.’ ” Manhattan Community Access, 139 S. Ct.

at 1931 (citation omitted).

4. Putting those principles together makes some

categories of cases relatively easy to resolve. When a

private entity denies access to private property over

which the government lacks ownership or control, and

it is not acting jointly with the government or under

governmental compulsion, it almost certainly has not

engaged in state action, absent highly unusual circumstances (such as the now-obsolete “company town” scenario in Marsh, supra). Conversely, when a public official denies access to public property, that almost certainly is state action.

Those two situations—private–private and public–

public—are likely to be the most common permutations

because, as a practical matter, a defendant can usually

deny access only to property that she owns or controls.

A private entity is generally not in a position to deny

someone access to public property; and a public entity

will rarely have the opportunity to deny access to private property over which the government lacks ownership or control. Cf. Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 394-395 (1995) (holding that

Amtrak was a government agency, thus necessarily implying that a billboard it owned and operated was public

property); San Francisco Arts & Athletics, 483 U.S. at

543-544 (holding that the U.S. Olympic Committee was

19

not a government entity and that its exclusive trademark was thus private property).

The more difficult cases are those where one factor

is public and the other private: either when a private

entity denies access to public property or when a public

official denies access to private property over which the

government lacks ownership or control. In addressing

the former situation, this Court has emphasized the degree of governmental involvement in the private defendant’s conduct. See Gilmore, 417 U.S. at 573 (asking

whether the government’s involvement is so great as to

make it a “joint participant”) (citation omitted); Evans,

382 U.S. at 301 (“an integral part”); Burton, 365 U.S. at

725 (“a position of interdependence”).

This Court does not appear to have squarely addressed the latter situation. Nevertheless, the principles set forth above can be applied, and they reinforce

each other. For example, when a denial of access involves indisputably private property over which the

government lacks ownership or control, that weighs in

favor of finding that the public official is acting in her

private capacity—which in turn should cause courts to

require her conduct to be much closer to the exercise of

a traditional, exclusive public function (as would be required of a private entity) before finding state action.

Conversely, if the official is carrying out her official duties or exercising the powers of her office, the more

likely it is that the government has “outsourced” one of

its obligations to be discharged using that ostensibly

private property (as in the hypothetical example of using a privately controlled social-media account to conduct notice-and-comment rulemaking). Manhattan

Community Access, 139 S. Ct. at 1929 n.1.

20

B. Petitioners’ Blocking Of Respondents Was Not State

Action

Under the foregoing principles, derived from this

Court’s precedents, petitioners’ blocking of respondents from their social-media accounts was not state action. This case represents the fourth combination discussed above: Public officials have denied access to private property over which the government lacks ownership or control. Although some cases presenting that

situation can be difficult to resolve, this case is relatively straightforward. Petitioners’ Facebook and

Twitter accounts indisputably are private property.

The Facebook accounts were created before either petitioner took office; indeed, petitioners used those accounts to promote their respective candidacies for the

school board. See Pet. App. 59a-60a; see C.A. E.R.

1859-1865, 1969-1979. And petitioners will continue to

exercise exclusive control over their accounts even after

they are no longer members of the school board. So unlike the official Poway Unified School District accounts

(facebook.com/PowayUnified and twitter.com/poway

unified), which are public property to which restricting

access generally would constitute state action, the

social-media accounts at issue in this case are purely

private property over which the school district lacks

ownership or control.

Nor can it be said that in using those nongovernmental accounts to communicate with constituents, petitioners were performing a traditional, exclusive public function. Democratically accountable officials of course

have a long tradition of communicating with the public

about matters of public concern. But the Court has explained that “to qualify as a traditional, exclusive public

function within the meaning of [this Court’s] state-

21

action precedents, the government must have traditionally and exclusively performed the function.” Manhattan Community Access, 139 S. Ct. at 1929. When public

officials communicate with the public, they do not “exercise[] ‘powers traditionally exclusively reserved to

the State.’ ” Id. at 1928 (emphasis added; citation omitted). Quite the contrary. The First Amendment expressly prohibits the government from reserving such

powers to itself. And others—including nonincumbent

candidates for public office, members of the media, and

private citizens—also communicate with the public

about the work of public officials and employees.

Petitioners’ operation of their Facebook and Twitter

accounts thus does not constitute “the exercise of some

right or privilege created by the State.” American

Manufacturers, 526 U.S. at 50 (citation omitted). Instead, any right or privilege that petitioners have to operate those accounts—including to block respondents—

flows from their personal ownership or control of the

relevant Facebook and Twitter accounts (per the terms

of service and functionality provided by those companies), irrespective of their status as members of the

school board.

For the same reason, petitioners cannot “fairly be

said” to have been state actors when they blocked respondents. American Manufacturers, 526 U.S. at 50

(emphasis added; citation omitted). Although petitioners were public officials, their power to operate their

personal social-media accounts was neither a “power

‘possessed by virtue of state law,’ ” nor one that was

“made possible only because [petitioners were] clothed

with the authority of state law.” West, 487 U.S. at 49

(citation omitted). Nor were petitioners acting in their

official capacities to “exercise[] [their] responsibilities

22

pursuant to state law” when they blocked respondents.

Id. at 49-50. Instead, like many public officials, petitioners simply sought to inform their constituents about

their work—in part to further their own careers—and

they chose to use their personal social-media pages as

one communications channel.

To be sure, the content of the communications on petitioners’ social-media pages reflected their unique status as school-board members, and they prominently

identified themselves as such (including by listing their

official positions and other trappings, such as O’ConnorRatcliff ’s official school-district email address). See

Pet. App. 23a. But the same could be said of speeches

delivered at campaign rallies, press conferences on

their own front lawns, or fundraising dinners at local

restaurants. Excluding respondents from those sorts of

communicative events, when held on properties over

which the government lacks ownership or control,

would not be state action. Cf. Biden v. Knight First

Amendment Institute, 141 S. Ct. 1220, 1222 (2021)

(Thomas, J., concurring) (“[G]overnment officials who

informally gather with constituents in a hotel bar can

ask the hotel to remove a pesky patron who elbows into

the gathering to loudly voice his views.”). That conclusion should not change simply because the private property at issue here is virtual rather than physical.

Nor does it matter that when communicating with

their constituents using social media, petitioners were

in some sense “doing their jobs.” Br. in Opp. 26. For

one thing, communicating with constituents is also an

essential part of the quintessentially private, nongovernmental task of seeking reelection. Cf. J.A. 31 (undisputed fact that petitioner O’Connor-Ratcliff “believes that she is ‘always running for public office,’ even

23

after being elected”) (citation omitted). And as this

Court has observed in a related context, “the mere fact

that a citizen’s speech concerns information acquired by

virtue of his public employment does not transform that

speech into employee—rather than citizen—speech.”

Lane v. Franks, 573 U.S. 228, 240 (2014).

More to the point, whether a public official’s conduct

is within the scope of her employment is distinct from

whether the conduct is state action. The scope-ofemployment concept, which finds its roots in the common law and varies from jurisdiction to jurisdiction, is

often used to determine whether an employer or other

principal is vicariously liable for the torts of its employees or agents. See, e.g., Kolstad v. American Dental

Association, 527 U.S. 526, 543-545 (1999); Burlington

Industries, Inc. v. Ellerth, 524 U.S. 742, 756-757 (1998).

State action, by contrast, concerns the applicability of

certain constitutional provisions.

There is no sound basis to conclude that the answer

to one of those inquiries should dictate any particular

answer to the other. Governments are free to redefine

the principles governing the scope of employment to

suit their individual policy preferences, but the reach of

federal constitutional provisions is not so malleable.

For example, a State might define any unlawful or unauthorized act to be outside the scope of employment,

but an officer who uses excessive force against an arrestee has still engaged in state action. Cf. Screws, 325

U.S. at 107-110 (plurality opinion). Conversely, a State

might generously choose to expand the scope of employment to include the purely private actions of its agents,

but that does not correspondingly expand what is constitutionally attributable to the State.

24

That is not to say, of course, that the two concepts

are completely unrelated; if the government requires its

employees to maintain social-media pages as part of

their job duties, or if public officials use government resources to maintain their social-media pages, their actions with respect to those pages will likely be both state

action and within the scope of employment. See Lindke

v. Freed, 37 F.4th 1199, 1203-1204 (6th Cir. 2022), cert.

granted, No. 22-611 (Apr. 24, 2023). The point, instead,

is that state action requires a public official to exercise

a right or privilege created by the State—such as by

acting in her official capacity to exercise responsibilities

pursuant to state law—regardless of whether the State

might view the conduct as within the scope of the official’s job for purposes of vicarious liability or indemnification.

C. The Lower Court’s Contrary Reasoning Is Unpersuasive

The court of appeals reached a contrary conclusion

by drawing on its precedent addressing when an offduty state employee (such as a police officer) acts under

color of law. Pet. App. 21a-24a. Specifically, the court

stated that an off-duty state employee acts under color

of law when he “purports to or pretends to act under

color of law,” his actions “ha[ve] the purpose and effect

of influencing the behavior of others,” and the resulting

harms are “related in some meaningful way either to

the officer’s governmental status or to the performance

of his duties.” Id. at 21a (brackets and citation omitted);

see Naffee v. Frey, 789 F.3d 1030, 1037 (9th Cir. 2015).

Depending on the facts, that multifactor analysis

might sometimes be an appropriate way to evaluate

whether public officials exercised “power ‘possessed by

virtue of state law,’ ” such that their actions are “made

possible only because [they are] clothed with the au-

25

thority of state law.” West, 487 U.S. at 49 (citation omitted). But this Court has eschewed any comprehensive

or rigid test for determining when state action exists,

and has instead “articulated a number of different factors or tests in different contexts.” Lugar, 457 U.S. at

939; see Gilmore, 417 U.S. at 574. The court of appeals’

multifactor test is ill-suited to the context here, which

involves the denial of access to intangible property

(social-media pages). As explained above, in such situations, the appropriate inquiry should turn significantly

on the public or private nature of the property at issue.

The court of appeals’ multifactor test seems better

suited to situations where a defendant exceeds her lawful authority in carrying out a “right or privilege [or rule

of conduct] created [or imposed] by the State,” American Manufacturers, 526 U.S. at 50 (citation omitted),

such as when an officer uses excessive force in arresting

a suspect. Indeed, the court’s first factor—whether the

defendant “purports to or pretends to act under color of

law,” Pet. App. 21a (brackets and citation omitted)—

traces its language back to the plurality opinion in

Screws, which involved precisely such a situation. See

325 U.S. at 111 (stating that “under ‘color’ of law means

under ‘pretense’ of law”).

In invoking that language, the plurality in Screws explained that the “officers were authorized to make an

arrest and to take such steps as were necessary to make

the arrest effective,” and they had therefore “acted

without authority only in the sense that they used excessive force in making the arrest effective.” 325 U.S.

at 111. Accordingly, the plurality explained, officers act

under pretense of law whenever they “undertake to perform their official duties,” regardless of “whether they

hew to the line of their authority or overstep it.” Ibid.

26

But that sort of “pretense” has no apparent relevance

when, as here, petitioners did not engage in the challenged conduct (blocking respondents) as part of their

official duties or as an exercise of a right or privilege

created by the school board in the first instance. See

pp. 20-24, supra.

The court of appeals’ second factor, which asks

whether the challenged conduct “had the purpose and

effect of influencing the behavior of others,” Pet. App.

23a (citation omitted), is likewise inapposite here. It is

one thing for an off-duty police officer to use the power

and prestige of her office (say, by flashing a badge or a

service revolver) to coerce a citizen into acting in a way

that facilitates the officer’s unlawful conduct. It is another thing entirely to encourage citizens to give feedback on and engage with a social-media post. And the

court’s third factor, which asks whether the harms resulting from the challenged conduct “ ‘related in some

meaningful way’ ” to the defendants’ “ ‘governmental

status’ and ‘to the performance of their duties,’ ” id. at

24a (brackets and citation omitted), is so open-ended as

to be of little use.

Finally, to the extent the court of appeals relied on

the “appearance” of petitioners’ social-media pages,

Pet. App. 23a, that too was unsuited to this context. To

be sure, those sorts of “trappings” might be relevant in

contexts involving police officers who exceed their lawful authority. But that is because the public is required

to obey police officers, and “we look to officers’ appearance because their appearance actually evokes state authority.” Lindke, 37 F.4th at 1206; see, e.g., Griffin v.

Maryland, 378 U.S. 130, 135 (1964) (finding state action

where the defendant “wore a sheriff ’s badge and consistently identified himself as a deputy sheriff rather

27

than as an employee of the park”). That is one reason

why impersonating a police officer is a crime. See e.g.,

18 U.S.C. 912; D.C. Code § 22-1406 (Supp. 2023).

Appearance does not, however, play the same role in

the circumstances at issue here. Nobody is required to

obey a school board member’s request to comment on

her Facebook posts, no matter how official-looking the

page might appear. Petitioners’ Facebook and Twitter

pages made it abundantly clear that petitioners were

school-board members, and that might well have enhanced the prestige of those pages or made them particularly attractive (and even unique) spaces for offering comments on school-board matters. But those

trappings did not imbue petitioners’ posts and tweets

with the force of law or otherwise establish that petitioners were exercising a right or privilege created by

the school board, or a traditional, exclusive public function, when they operated their private social-media accounts.

D. An Overly Expansive Theory Of State Action In This

Context Would Undermine, Not Promote, First Amendment Values

As the analysis above indicates, this Court’s precedents wisely reflect a limited theory of state action in

this context. Whether particular conduct constitutes

state action (or is under color of state law) determines

the applicability of a variety of constitutional constraints. See, e.g., Manhattan Community Access, supra (First Amendment); Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (Fourth

Amendment); Public Utilities Commission v. Pollak,

343 U.S. 451 (1952) (Fifth Amendment); West, supra

(Eighth Amendment); Blum v. Yaretsky, 457 U.S. 991,

996 (1982) (procedural due process under Fourteenth

28

Amendment); Griffin, supra (equal protection under

Fourteenth Amendment); Nixon, supra (Fifteenth

Amendment). An appropriately limited state-action

doctrine “ ‘preserves an area of individual freedom by

limiting the reach of federal law’ and avoids the imposition of responsibility on a State for conduct it could not

control.” NCAA v. Tarkanian, 488 U.S. 179, 191 (1988)

(citation omitted).

That salutary aim is especially important in the First

Amendment context. This Court has explained that an

overly expansive “theory of state action” “would be especially problematic in the speech context, because it

could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their

properties or platforms.” Manhattan Community Access, 139 S. Ct. at 1932. The same holds true for public

officials and employees like petitioners.

Moreover, subjecting large amounts of the speech of

public officials and employees to constitutional restrictions could make those officials and employees less

willing to speak in the first place. That sort of chilling

effect would thus reduce, not enhance, free speech and

public discourse. Indeed, in response to the district

court’s injunction and declaration in this case, petitioners have employed “word filters” that “as a practical

matter” “preclude all verbal comments on their public

pages” on Facebook. Pet. App. 13a. It is hard to see

how, on balance, that promotes First Amendment values.

In addition, an overly expansive theory of state action in this context might well lead to overregulation of

public employees’ speech. As this Court has recognized,

government “[e]mployers have heightened interests in

controlling speech made by an employee in his or her

29

professional capacity.” Garcetti v. Ceballos, 547 U.S.

410, 422 (2006). To say that the speech of a public employee on a personal social-media account constitutes

state action—meaning that the speech is “fairly attributable to the [government],” Lugar, 457 U.S. at

937—would be to say that the government could regulate the content of that speech. See Garcetti, 547 U.S.

at 422-423; cf. Pickering v. Board of Education, 391

U.S. 563, 573-574 (1968). And because many government employers are potentially exposed to liability

whenever their employees engage in state action, see

Monell v. Department of Social Services, 436 U.S. 658

(1978), the urge to regulate would be substantial.

Again, it is difficult to see how that would promote First

Amendment values.

At the same time, an expansive state-action theory

would carry few if any benefits in this context because

a plaintiff who is blocked from a public official’s socialmedia account is unlikely to prevail under substantive

First Amendment law even if he can show that the

blocking constitutes state action. For example, when

the government itself is doing the speaking, it may craft

its own message and exclude others from the opportunity to present dissenting views. See Shurtleff v. City

of Boston, 142 S. Ct. 1583, 1587, 1589 (2022). So if

public-official defendants were to assert, as petitioners

did here, that they intended to use their social-media

accounts “in a ‘bulletin board’ manner—providing oneway communication from themselves to their constituents,” Pet. App. 60a, and that assertion were credited,

then a finding that the officials engaged in state action

might well imply that the posts and tweets on their accounts (including the comments attached to the posts

and tweets) constituted government speech outside the

30

reach of the First Amendment’s speech constraints.

See Pleasant Grove City v. Summum, 555 U.S. 460, 467

(2009) (“The Free Speech Clause restricts government

regulation of private speech; it does not regulate government speech.”).

Alternatively, even when the government creates a

“forum” for debate, it has substantial latitude to impose

reasonable speaker- or content-based restrictions on

that forum. See Minnesota Voters Alliance v. Mansky,

138 S. Ct. 1876, 1885-1886 (2018). So if a factfinder determined that public-official defendants used their accounts to create a forum for public debate, then their

blocking of other users for posting repetitious or nonresponsive comments, cf. Pet. App. 73a, would likely

constitute a reasonable speaker- or content-based restriction. Moreover, anyone blocked by an official could

easily create a new account and regain access to the

forum, thereby mitigating any First Amendment injury.

The point here is not to engage in substantive First

Amendment analysis, which is beyond the scope of the

question presented in the petition for a writ of certiorari. See Cert. Reply Br. 2, 10. Instead, the point is

that there is little to be gained, and much to be lost, by

adopting an overly expansive theory of state action that

would extend to the use of nearly every public official’s

private social-media account. As noted, that scenario

would undermine, not promote, First Amendment values, and as a practical matter the end result of any litigation would likely be the same as under a more constrained theory of state action.

31

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

SOPAN JOSHI

Assistant to the Solicitor

General

DANIEL TENNY

JENNIFER L. UTRECHT

Attorneys

JUNE 2023