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

Supreme Court briefAug 15, 2023

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No. 22-324

In the

Supreme Court of the United States

MICHELLE O’CONNOR-RATCLIFF, ET AL.

Petitioners,

CHRISTOPHER GARNIER, ET UX.

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION IN SUPPORT OF

RESPONDENTS AND AFFIRMANCE

KELLEY BREGENZER

FOUNDATION FOR

INDIVIDUAL RIGHTS AND

EXPRESSION

510 Walnut St.

Suite 1250

Philadelphia, PA 19106

ROBERT CORN-REVERE

Counsel of Record

FOUNDATION FOR

INDIVIDUAL RIGHTS AND

EXPRESSION

700 Pennsylvania Ave SE.

Suite 340

Washington, DC 20003

(215) 717-3473

bob.corn-revere@thefire.org

Counsel for Amicus Curiae

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.

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... I

TABLE OF CONTENTS ............................................ II

TABLE OF AUTHORITIES..................................... III

INTEREST OF AMICUS CURIAE ............................1

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

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ...............................................................6

Allowing Government Officials to Censor

Social Media Critics Betrays the First

Amendment’s Purpose and Undermines

the Internet’s Promise. .......................................6

II.

The Ninth Circuit Was Correct in

Holding Public Officials Engage in State

Action When They Use Social Media

Accounts as Tools of Governance. ..................... 14

Public officials act as agents of the

government, not private citizens, when

they conduct public business on social

media. ............................................................ 14

The Ninth Circuit’s “purpose and

appearance” analysis aligns with

exsisting precedent........................................ 17

CONCLUSION .......................................................... 19

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Baumgartner v. United States,

322 U.S. 665 (1944) ................................................ 13

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) .......................................... 15, 18

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021)...... 5, 14, 15, 16, 17, 19

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019);....................... 5, 17, 19

Doe v. Reed,

561 U.S. 186 (2010) ................................................ 12

Fasking v. Merrill, No. 2:18-cv-809-JTA,

2023 WL 149048 (M.D. Ala. Jan. 10, 2023) .......... 11

Garcetti v. Ceballos,

547 U.S. 410 (2006) ............................................ 3, 14

Garnier v. O’Connor-Ratcliff,

41 F.4th 1158 (9th Cir. 2022) ...... 3, 5, 10, 16, 17, 19

Garrison v. Louisiana,

379 U.S. 64 (1964) .................................................. 12

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) .......................................... 15, 18

Knight First Amend. Inst. v. Trump,

928 F.3d 226 (2d Cir. 2019) ............... 5, 8, 16, 17, 19

Knight First Amend. Inst. v. Trump,

953 F.3d 216 (2d Cir. 2020) ................................... 13

Lindke v. Freed,

37 F.4th 1199 (6th Cir. 2022) ...................... 5, 17, 18

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982)............................................ 5, 15

Martinez v. Colon,

54 F.3d 980 (1st Cir. 1995) .................................... 15

Matal v. Tam,

582 U.S. 218 (2017). ............................................... 13

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ................................................ 12

Naffe v. Frey,

789 F.3d 1030 (9th Cir. 2015)................................ 16

One Wis. Now v. Kremer,

354 F. Supp. 3d 940 (W.D. Wis.). .................... 11, 13

Packingham v. North Carolina,

582 U.S. 98 (2017) .............................................. 6, 14

Reno v. ACLU,

521 U.S. 844 (1997) .................................................. 6

Rosenberger v. Rector & Visitors of the

Univ. of Va., 515 U.S. 819 (1995). ......................... 13

Rossignol v. Voorhaar,

316 F.3d 516 (4th Cir. 2003).................................. 15

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ................................................ 13

Skinner v. Ry. Lab. Execs. Ass’n.,

489 U.S. 602 (1989) ................................................ 15

West v. Adkins,

487 U.S. 42 (1988) .................................................. 14

Other Authorities

Charlie Savage, Trump Can’t Block Critics

From His Twitter Account, Appeals Court

Rules, N.Y. Times (July 9, 2019) ........................... 11

Found. for Individual Rts. & Expression, The

New York State Senate Blocks Critics on

Twitter. That’s Unconstitutional—and FIRE

Calls on the Senate to Knock It Off, (Aug. 18,

2022) ......................................................................... 2

Governors’ Social Media Accounts,

Nat’l Governors Ass’n .............................................. 7

Jordan Valinsky, Elon Musk Rebrands Twitter

As X, CNN ................................................................ 2

Sasha Ingber, Alexandria Ocasio-Cortez Is Sued

Over Blocking Twitter Followers, NPR (July

12, 2019) ................................................................. 11

Scott Thistle, Settlement ends blocking of critical

comments on pro-LePage Facebook page,

Portland Press Herald (Dec. 10, 2018).................. 11

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the most essential qualities of liberty. Since

1999, FIRE has successfully defended the rights of

individuals through public advocacy, strategic

litigation, and participation as amicus curiae in cases

that implicate expressive rights under the First

Amendment. See, e.g., Br. of FIRE as Amicus Curiae

in Supp. of Pet’r, Kennedy v. Bremerton Sch. Dist., 142

S. Ct. 2407 (2022); Br. of FIRE as Amicus Curiae in

Supp. of Pet’r, Barton v. Texas, 143 S. Ct. 774 (2023)

(mem.).

FIRE regularly defends speakers whose

expression has been censored by governmental social

media accounts. For example, FIRE has successfully

advocated for changes to restrictive social media

policies at state universities. See Found. for

Individual Rts. & Expression, Wright State

University: Facebook Comments Restricted During

Faculty Union Strike [https://perma.cc/6F8S-WQ5T].

And FIRE has collected and reported on public records

from over 200 state colleges and universities,

demonstrating that these public institutions widely

restrict speech on social media sites. See Found. for

Individual Rts. & Expression, No Comment: Public

Universities’ Social Media Use and the First

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief.

Amendment, (Apr. 22, 2020) [https://perma.cc/3G4E86WY] (“No Comment”).

In June 2022, FIRE expanded its mission to

protect First Amendment rights and a culture of free

expression beyond the university setting to include

society at large. See, e.g., Found. for Individual Rts. &

Expression, The New York State Senate Blocks Critics

on Twitter. That’s Unconstitutional—and FIRE Calls

on the Senate to Knock It Off, (Aug. 18, 2022),

[https://perma.cc/6NC2-7GEH]. In line with this

expanded purpose, FIRE filed an amicus brief in this

Court supporting the petitioner in Lindke v. Freed,

No. 22-611, which presented a question closely related

to the one at issue here.

INTRODUCTION

Petitioners in this case, trustees of a local school

board, embraced social media to conduct their official

business. They used their personal Facebook and

Twitter2 accounts to celebrate the school district’s

achievements, seek applications for position openings,

share public safety alerts, and announce policy

decisions. They took full advantage of the platforms’

interactivity, soliciting comments and input from

constituents regarding important board decisions.

2 In July 2023, the social media website formerly known as

Twitter was renamed “X.” Jordan Valinsky, Elon Musk Rebrands

Twitter As X, CNN, https://www.cbsnews.com/news/twitter-birdlogo-replacement-x-elon-musk/ (last updated July 24, 2023).

Since the events at issue here occurred while X was still known

as Twitter and the Ninth Circuit’s decision uses the name

“Twitter,” FIRE uses “Twitter” to refer to the website in this

brief.

Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1165 (9th

Cir. 2022), cert. granted, 143 S. Ct. 1179 (2023).

In this respect, board trustees Michelle O’ConnorRatcliff and T.J. Zane followed the example set by

public officials across the country. From the highest

offices down to the most local, many officials have

opted to conduct the public’s business using the

interactive features that are the defining

characteristic of social media. Unfortunately, once the

interactivity proved to be too much of a good thing,

they also emulated the actions taken by some, to block

user comments. Petitioners began by deleting or

hiding comments posted by two active board critics,

Christopher and Kimberly Garnier, claiming the posts

were too lengthy and repetitive, before ultimately

blocking them altogether.

Petitioners ask this Court to bless this exercise in

viewpoint discrimination and to hold that social

media accounts used for official business are “private

speech.” They argue that this holding is necessary to

protect the “individual liberty” of the public officials

involved, claiming they are merely exercising their

own First Amendment rights. Pet. 25.

But public officials cannot skirt the First

Amendment’s prohibition on viewpoint discrimination

by claiming the personal accounts on which they

conduct government business lack a sufficient nexus

to the state. Government officials do not exercise their

personal free speech rights when they use social

media accounts to conduct public affairs. When

speaking “pursuant to their official duties,” officials

“are not speaking as citizens for First Amendment

purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421

(2006).

This case asks the Court to decide when

government officeholders’ “personal” social media

accounts become “official” and therefore constitute

state action subject to constitutional rules. In this

regard, the Ninth Circuit’s “purpose and appearance”

test ensures that public officials like trustees

O’Connor-Ratcliff and Zane play by the First

Amendment’s rules when they use social media to

govern.

SUMMARY OF ARGUMENT

This Court should affirm the Ninth Circuit,

because the “purpose and appearance” test prevents

public officials from turning the social media

platforms on which they voluntarily choose to conduct

government business into tools of censorship.

Social media platforms in recent years are being

used as essential tools of government. While in many

cases these accounts are owned and operated directly

by the government, in other instances, as here, public

officials simply use their personal accounts to conduct

official business. When the government operates an

interactive forum, the constitutional rule is clear that

it may not engage in viewpoint-based discrimination

regarding citizens’ posts. But if private accounts that

are used for public business are exempt from this

requirement, as Petitioners claim, it would open a

massive loophole that would permit officeholders to

silence their critics.

Petitioners’ proposed approach is incorrect. When

officials use personal accounts to boost their

governmental profiles and conduct public business,

they are acting “under color of state law,” and their

actions are “fairly attributable to the state.” See Lugar

v. Edmondson Oil Co., 457 U.S. 922, 935–37 (1982).

The Ninth Circuit, like most other courts that have

addressed this issue, applied a holistic, fact-specific

inquiry to determine whether an official’s social media

activity constitutes state action. Garnier, 41 F.4th at

1170–77; see also Knight First Amend. Inst. v. Trump,

928 F.3d 226, 235–36 (2d Cir. 2019), reh’g denied, 953

F.3d 216 (2d Cir. 2020), vacated as moot sub nom.

Biden v. Knight First Amend. Inst., 141 S. Ct. 1220

(2021); Davison v. Randall, 912 F.3d 666, 680 (4th Cir.

2019); Campbell v. Reisch, 986 F.3d 822, 825–26 (8th

Cir. 2021); But see Lindke v. Freed, 37 F.4th 1199,

1201 (6th Cir. 2022), cert. granted, 143 S. Ct. 1780

(2023) (holding social media is considered state action

only if it is part of an official’s “actual or apparent

duties”). As the Ninth Circuit explained, the state

action inquiry encompasses “a process of sifting facts

and weighing circumstances” to determine whether a

“close nexus” exists between the state and an official’s

social media activity. Garnier, 41 F.4th at 1169. This

analysis looks into how the official describes and uses

the account, to whom features of the account are made

available, and how others, including government

officials and agencies, regard and treat the account.

Under this “purpose or appearance” approach,

courts have correctly found that state action is present

when a governmental official uses a social media

platform for official purposes—and that the First

Amendment does not permit that official to exclude

persons from an otherwise open dialogue merely

because they expressed views the official disfavors.

This Court should uphold the decision below so that

government officials who choose to engage the public

on social media cannot exclude citizens from

“speaking and listening in the “modern public

square.” Packingham v. North Carolina, 582 U.S. 98,

107 (2017).

ARGUMENT

I. Allowing Government Officials to Censor

Social Media Critics Betrays the First

Amendment’s Purpose and Undermines the

Internet’s Promise.

a. The internet has revolutionized the ways in

which citizens interact with government leaders.

Through the “vast democratic forums of the Internet,”

citizens “can petition their elected representatives

and otherwise engage with them in a direct manner.”

Packingham, 582 U.S. at 98, 104–105 (quoting Reno

v. ACLU, 521 U.S. 844, 870 (1997)). Each day,

thousands of officials converse directly with their

constituents and the public at large on social media

platforms.

The government makes extensive use of social

media through official websites and governmentowned accounts. Federal agencies have registered

more than 10,000 social media accounts with the U.S.

Digital Registry.3 The governors of each state use

U.S. Digital Registry, Digital.Gov, https://digital.gov/

services/u-s-digital-registry/ (last visited June 20, 2023) [https://

perma.cc/FHQ9-SQ43].

social media to communicate with the public about

their official duties.4

In many cases, social media play an important role

in facilitating the day-to-day functioning of

government. For example, city council members livetweet minutes of public meetings,5 mayors share

videos and photos of themselves interacting with the

community,6 and city officials detail road closures.7

Public universities also leverage social media to share

news, make announcements, foster school spirit, point

to resources, connect with alumni, and interact

directly with students.8 School board officials at the

K-12 level are no exception. For example, the board of

education overseeing the Easton Area School District

in Pennsylvania maintains a Twitter account

4 Governors’ Social Media Accounts, Nat’l Governors Ass’n,

https://www.nga.org/governors/social/ (last visited June 19,

2023) [https://perma.cc/R8J6-R2SS].

Albuquerque City Council (@ABQCityCouncil), Twitter

(May 2, 2023), https://twitter.com/ABQCityCouncil/status/1653

253531443294209 (last visited Aug. 14, 2023).

6 Mayor Bryce

Ward (@mayorbryceward), Instagram (Dec.

15, 2022), https://www.instagram.com/p/CmNoOb-v4OI/ (last

visited Aug. 14, 2023).

7 City of Saint Paul – Government, Facebook (June 12, 2023),

https://www.facebook.com/photo?fbid=569345462045121&

set=a.168452565467748 (last visited Aug. 14, 2023).

8 See,

e.g., University of Michigan, Facebook, https://www.

facebook.com/UniversityOfMichigan/ (last visited June 20,

2023);

LSU

(@lsu),

TikTok,

https://www.tiktok.com/

@lsu (last visited June 20, 2023); Arizona State University

(@arizonastateuniversity), Instagram, https://www.instagram.

com/arizonastateuniversity/ (last visited June 20, 2023).

celebrating student, teacher, and staff achievements.9

And individual school board members use social

media to share news about district-wide events and

upcoming board meetings.10 In such circumstances,

there is no question that this use of official social

media accounts to conduct official business

constitutes state action.

In other instances, however, officials choose to use

personal accounts to conduct their official duties.

Former President Trump converted what began as a

private Twitter account into “one of the White House’s

main vehicles for conducting official business.” Knight

First Amend. Inst., 928 F.3d at 232. President Biden

similarly uses his “personal” Twitter account to

communicate with the public. The President regularly

tweets about his positions on important public policy

issues—ranging from gun control11 to the cost of

living.12 The President’s personal account, which he

Easton Area School District Board of Education

(@BOE_EASD), Twitter, https://twitter.com/BOE_EASD.

See, e.g., School Board Member Luisa Santos

(@luisasantosd9), Twitter, https://twitter.com/luisasantosd9;

Cathy Nathan – Rochester Sch. Bd. (@cathynathansb), Twitter,

https://twitter.com/cathynathansb.

Joe Biden (@JoeBiden), Twitter (June 15, 2023),

https://twitter.com/JoeBiden/status/1669411704537587712.

Joe Biden (@JoeBiden), Twitter (June 14, 2023),

https://twitter.com/JoeBiden/status/1669068188691185665.

established in 2007, has nearly 6 million more

followers than the official POTUS account.13

Members of Congress and their staff also use

personal social media accounts to conduct their public

duties. The Pew Research Center found that the

typical member of Congress maintains two accounts

on each platform—one “official” account and another

personal

campaign-related

account.14

Representatives Dan Crenshaw and Alexandria

Ocasio-Cortez and Senator Cory Booker, for example,

all use their personal Twitter accounts to

communicate policy positions, comment on legislative

matters and current affairs, and interact with other

Twitter users. They also use these accounts to offer

personal updates and general messages unrelated to

their official duties.15

In each instance, the politicians’ personal accounts

have garnered significantly more followers than their

official congressional accounts.16 These examples

As of June 20, 2023, 37.2 million people followed the

“personal” @JoeBiden account, while 31.3 people followed the

official @POTUS account.

14 Id.

15 Dan Crenshaw (@DanCrenshawTX), Twitter, https://twit

ter.com/DanCrenshawTX (last visited Aug. 14, 2023) (1.2 million

followers);

Alexandria

Ocasio-Cortez

(@AOC), https://

twitter.com/AOC (last visited Aug. 14, 2023) (13.3 followers);

Cory Booker (@CoryBooker), https://twitter.com/CoryBooker

(last visited Aug. 14, 2023) (4.7 million followers).

Compare supra note 15, with Rep. Dan Crenshaw

(@RepDanCrenshaw), Twitter, https://twitter.com/RepDanCren

shaw (last visited Aug. 14, 2023) (692,200 followers); Rep.

Alexandria Ocasio-Cortez (@RepAPC), Twitter, https://twitter

illustrate the overlap between a state-sanctioned

social media account and “personal” accounts.

b. Much like their counterparts, trustees O’ConnorRatcliff and Zane use the accounts they created before

taking office to facilitate their public service. Garnier,

41 F.4th at 1164. They “clothed their pages in the

authority of their offices and used their pages to

communicate about their official duties,” yet “contend

their use of social media did not constitute state

action.” Garnier, 41 F.4th at 1158, 1172. On that

basis, Petitioners assert they have a “right” to

selectively ban comments they dislike.

The Garniers posted comments on the trustees’

social media accounts to express concerns about the

school superintendent’s alleged misconduct and

issues concerning race relations within the school

district. Id. at 1166. These posts “did not use profanity

or threaten physical harm,” but trustees O’ConnorRatcliffe and Zane didn’t like the length and

frequency of the posts, so they tried a number of

tactics to mute the Garniers. They first deleted and

hid the comments before finally blocking them

entirely. Id. at 1165–66.

Unfortunately, these censorial actions also

emulated those of other politicians. Officials spanning

the political spectrum, from former President Trump

to Representative Ocasio-Cortez, have used the

.com/repaoc (last visited Aug. 14, 2023) (777,100 followers); Sen.

Cory Booker (@SenBooker), Twitter, https://twitter.com/SenB

ooker (last visited Aug. 14, 2023) (197,100 followers).

blocking functions of social media to deny access to

critics and vanish unfavorable comments.17

They are joined by state and local officials. Former

Alabama Secretary of State John Merrill used his

personal Twitter account to perform his official duties

yet blocked a number of accounts for tweets “that were

directed at him and that concerned election law,

criticized him, or included comments with which he

disagrees.” Fasking v. Merrill, No. 2:18-cv-809-JTA,

2023 WL 149048, at *2–6, *18 (M.D. Ala. Jan. 10,

2023), dismissed as moot, Fasking v. Allen, No. 2:18cv-809-JTA, 2023 WL 2655863 (M.D. Ala. Mar. 27,

2023). Several members of the Wisconsin legislature

blocked critics from their personal Twitter accounts

for, among other things, “crude comments on

Wisconsin politics,” and “tweets of an inappropriate

and unprofessional nature.” One Wis. Now v. Kremer,

354 F. Supp. 3d 940, 948–49 (W.D. Wis.) (cleaned up).

And former Maine Governor Paul LePage, who used

his personal Facebook page to support his office,

deleted posts and blocked users from a progressive

group.18

Charlie Savage, Trump Can’t Block Critics From His

Twitter Account, Appeals Court Rules, N.Y. Times (July 9, 2019),

https://www.nytimes.com/2019/07/09/us/politics/trump-twitterfirst-amendment.html [https://perma.cc/YWN2-83X2]; Sasha

Ingber, Alexandria Ocasio-Cortez Is Sued Over Blocking Twitter

Followers, NPR (July 12, 2019), https://www.npr.org/2019/07/12/

741038121/alexandria-ocasio-cortez-is-sued-over-blockingtwitter-followers [https://perma.cc/5QLJ-MYXB].

18 Scott Thistle, Settlement ends blocking of critical comments

on pro-LePage Facebook page, Portland Press Herald (Dec. 10,

2018),

https://www.pressherald.com/2018/12/10/lepage-team-

c. Public officials who use their social media

accounts to conduct public business while claiming a

“private” right to avoid criticism betray the First

Amendment’s guarantee of free expression and

undermine its essential purpose of facilitating

democratic rule. Speech concerning public affairs “is

more than self-expression; it is the essence of selfgovernment.” Garrison v. Louisiana, 379 U.S. 64, 74–

75 (1964). The First and Fourteenth Amendments

embody our “profound national commitment to the

principle that debate on public issues should be

uninhibited, robust, and wide-open, and that it may

well include vehement, caustic, and sometimes

unpleasantly sharp attacks on government and public

officials.” N.Y. Times v. Sullivan, 376 U.S. 254, 270

(1964).

Those who choose to run for public office—and

especially those who invite constituent dialog on their

social media platforms—must accept the fact that

hearing their critics comes with the job. “Those who

won our independence believed . . . that public

discussion is a political duty; and that this should be

a fundamental principle of the American

government.” Id. “[H]arsh criticism . . . is a price our

people have traditionally been willing to pay for selfgovernance.” Doe v. Reed, 561 U.S. 186, 228 (2010)

(Scalia, J., concurring).

Many public officials may honestly believe that the

criticism heaped upon them is ill-informed or

misguided, and they may well have good reason to

think so. But this cannot justify culling the comments

settles-lawsuit-over-facebook-blocking/

5634-PFJJ].

[https://perma.cc/

(or commenters) they dislike. “American citizenship is

the right to criticize public men and measures—and

that means not only informed and responsible

criticism, but the freedom to speak foolishly and

without moderation.” Baumgartner v. United States,

322 U.S. 665, 674 (1944).

Likewise, the First Amendment does not permit

blocking

comments

because

unfavorable

viewpoints. Matal v. Tam, 582 U.S. 218, 243 (2017).

This Court has long held that viewpoint

discrimination is “an egregious form of content

discrimination,” and when government targets

“particular views taken by speakers on a subject, the

violation of the First Amendment is all the more

blatant.” Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819, 828–29 (1995).

When government actors use social media

accounts to effectuate their public service, they are

acting as the state. “Having opted to create a [social

media] account . . . and benefit from its broad, public

reach,” public officials should not be permitted to

“divorce themselves from its First Amendment

implications and responsibilities as state actors.” One

Wis. Now, 354 F. Supp. 3d at 954. For if they “are

permitted to pick and choose” who they want to

receive feedback from on their social media accounts,

“the path is cleared for a regime of censorship under

which full voice can be given only to those views which

meet with the approval of the powers that be.” Knight

First Amend. Inst., 953 F.3d at 221 (statement of

Parker, J.) (quoting Se. Promotions, Ltd. v. Conrad,

420 U.S. 546, 563 (1975)).

Such an outcome not only betrays basic First

Amendment principles, it repudiates the promise of

cyberspace, and “social media in particular” as one of

“the most important places . . . for the exchange of

views.” Packingham, 582 U.S. at 104.

II. The Ninth Circuit Was Correct in Holding

Public Officials Engage in State Action When

They Use Social Media Accounts as Tools of

Governance.

A. Public officials act as agents of the

government, not private citizens,

when they conduct public business

on social media.

The Ninth Circuit correctly held that the

Petitioners acted under color of state law when they

blocked the Garniers from their social media accounts.

Garnier, 41 F.4th at 1170. Officials engage in state

action when they conduct public business on social

media, regardless of if they do so on a personal

account or a government-owned one.

Government officials are not exercising their

personal free speech rights when they choose to use

their social media accounts to conduct public affairs.

E.g., Campbell, 986 F.3d at 826 (“A private account

can turn into a governmental one if it becomes an

organ of official business.”). A citizen “who works for

the government” undoubtedly has a constitutionally

protected right to speak as a citizen “about matters of

public concern,” but when speaking “pursuant to their

official duties, the employees are not speaking as

citizens for First Amendment purposes.” Garcetti, 547

U.S. at 419–21. The relevant question is whether the

official has chosen to use his or her social media site

to conduct government business. West v. Adkins, 487

U.S. 42, 50 (1988) (“a public employee acts under color

of state law while acting in his official capacity or

while exercising his responsibilities pursuant to state

law”).

This Court has addressed various contexts in

which officials pursue their official duties and thus

are considered to be acting “under color of state law.”

Lugar, 457 U.S. at 928 (“‘[U]nder color’ of law has

consistently been treated as the same thing as the

‘state action’ required under the Fourteenth

Amendment.”). When a government official uses his

social media account to conduct public business, the

main issue to consider is whether the actions are

“fairly attributable to the State.” See id. at 937;

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001). No single factor is

dispositive, id., and courts will examine the “totality

of the circumstances” to determine if the challenged

action bears “a ‘sufficiently close nexus’ with the State

to be ‘fairly treated as that of the State itself.’”

Rossignol v. Voorhaar, 316 F.3d 516, 525 (4th Cir.

2003) (quoting Jackson v. Metro. Edison Co., 419 U.S.

345, 351 (1974)). See Skinner v. Ry. Lab. Execs. Ass’n.,

489 U.S. 602, 614–15 (1989).

Under this analysis, an official’s conduct is more

likely to amount to state action when it “occurs in the

course of performing an actual or apparent duty of his

office.” Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.

1995). The most important question for a government

official’s social media account is whether it has been

used as a “tool of governance.” Campbell, 986 F.3d at

825. If so, there can be little doubt that the official is

engaged in state action.

Of course, government officials have the right to

use social media without being encumbered by

constitutional obligations. Id. at 826 (“not every social

media account operated by a public official is a

government account”) (quoting Knight, 928 F.3d at

236). But when they choose to use personal accounts

to conduct public affairs and take advantage of social

media’s defining feature of interactivity, they are

engaged in state action.

In the instant case, there is no question that the

trustees’ social media activity amounts to state action.

Although they were not required to maintain social

media, the trustees chose to do and ran the accounts

in a manner “directly connected to . . . their official

positions.” Garnier, 41 F.4th at 1170. Not only did the

trustees identify themselves as “government officials”

on their pages, they also listed their official district

email addresses. Id. at 1171. Trustee Zane even went

to far as to identify his Facebook page as “the official

page for T.J. Zane, Poway Unified School District

Board Member, to promote public and political

information.” Id.

And the trustees “overwhelmingly” populated

their feeds with information clearly related to their

duties. Id. They shared news related to the Board’s

activities, school board meetings, budget planning,

the search for a new superintendent, and public safety

issues. Id. Further, the trustees invoked their

“governmental status” to operate their pages in a

manner that “had the purpose and effect of

influencing the behavior of others.” Id. at 1170

(quoting Naffe v. Frey, 789 F.3d 1030, 1037 (9th Cir.

2015). They invited the public to interact with them

via social media, seeking feedback related to district

policy decisions and soliciting volunteers for Board

committees. Id.

Ultimately, the trustees “clothed their pages in the

authority of their offices and used their pages to

communicate their official duties,” and are therefore

bound by the First Amendment’s prohibition of

viewpoint discrimination. Id. at 1172.

B. The Ninth Circuit’s “purpose and

appearance” analysis aligns with

exsisting precedent.

This case presents a straightforward proposition:

When does a public official’s use of social media

constitute government action? Every court to have

considered the issue—save for one—has found the

right balance by looking to the “purpose and

appearance” of the respective websites. See Knight

First Amend. Inst., 928 F.3d at 235–36; Davison, 912

F.3d at 680; Campbell, 986 F.3d at 825–26.

Petitioners urge this Court to reject not only the

reasoning of the Ninth Circuit below, but also that of

the Second, Fourth, and Eighth Circuits which

applied the “purpose and appearance” test for

determining state action. Instead, it urges the Court

to embrace the holding of the lone outlier, which held

that a city manager had not acted under color of state

law when he blocked citizens from his Facebook page.

Lindke, 37 F.4th at 1201. Under the Sixth Circuit’s

approach, operation of a social media site should be

treated as state action only where (1) it is part of an

officeholders’ “actual or apparent duties,” or (2) it

could not happen in the same way “without the

authority of [the] office.” Id. at 37 F.4th at 1203.

But the Sixth Circuit’s analysis is too narrow. It

focuses only on actions undertaken directly by the

state, not actions taken “under color of state law,” or

actions that could be “fairly attributable to the state.”

This constrained conception ignores this Court’s

repeated admonitions that determining whether a

given activity “is ‘private,’ on the one hand, or ‘state

action,’ on the other, frequently admits of no easy

answer.” Jackson, 419 U.S. at 349–350. The analysis

may turn on a “host of facts” that address, among

other things, whether ostensibly private action is

“entwined with governmental policies,” or when

government is “entwined in [its] management or

control.” Brentwood Acad., 531 U.S. at 296. See Lugar,

457 U.S. at 939.

The Sixth Circuit characterizes its test as an effort

to bring “the clarity of bright lines” that “offer

predictable application for state officials,” Lindke, 37

F.4th at 1206–07, but it merely proffers the easy

answers this Court has eschewed. True, the Sixth

Circuit’s approach does promise “predictable

application for state officials”—but not in a good way.

Officeholders would be able to use their “personal”

social media accounts to conduct public business, as

many have done. And so long as the accounts are not

mandated, funded, or managed by state law, these

officials could censor criticism without limit, free from

any constitutional restraint. The Sixth Circuit’s

“actual or apparent duties” test gives government

officials a blueprint for evading First Amendment

review.

The better alternative is the “fact-specific inquiry”

the Ninth and other circuits have used, which

examines things like “how the official describes and

uses the account; to whom features of the account are

made available; and how others, including

government officials and agencies, regard and treat

the account.” Knight, 928 F.3d at 236. A fact-specific

inquiry focuses on how public officials actually use

their accounts based on easily understood factors.

While there may be close cases where “occasional

stray messages that might conceivably be

characterized as conducting the public’s business” are

claimed to constitute state action, Campbell, 986 F.3d

at 827, in most cases courts have had little difficulty

in identifying when personal social media accounts

are being used as “an official vehicle for governance.”

See Knight, 928 F.3d at 237; Davison, 912 F.3d at 683;

Garnier, 41 F.4th at 1170 (“The Trustees’ use of their

social media accounts was directly connected to,

although not required by, their official positions.”).

The decision below should be affirmed.

CONCLUSION

This Court should apply the well-established

principles from its cases analyzing action taken under

color of state law to public officials’ use of social media

accounts. By affirming the Ninth Circuit’s decision,

the Court ensures citizens can interact directly with

public officials online without fear of viewpoint-based

censorship.

August 15, 2023

Respectfully Submitted,