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.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF PROTECT THE FIRST

FOUNDATION AS AMICUS CURIAE

SUPPORTING RESPONDENTS

GENE C. SCHAERR

Counsel of Record

ERIK S. JAFFE

H. CHRISTOPHER BARTOLOMUCCI

HANNAH C. SMITH

ANNIKA BOONE BARKDULL*

SCHAERR|JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

(202) 787-1060

gschaerr@schaerr-jaffe.com

TABLE OF CONTENTS

Page

INTRODUCTION AND INTEREST OF AMICUS .... 1

STATEMENT ............................................................... 3

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

ARGUMENT ................................................................ 5

I. The State Action Inquiry in This and

Similar Cases Should Look to An Account’s

Purpose, Its Appearance, And Whether it

Facilitates Fulfillment of Governmental

Duties. ................................................................ 5

II. As Illustrated by Congress’s Practice, A

More Comprehensive Approach Is Workable

and Encourages Government Bodies to

Adopt Clear Standards Regarding Official

Speech. ............................................................. 10

A. A More Comprehensive State Action

Inquiry

Adequately

Distinguishes

Between Public and Private Accounts.... 11

B. Affirming the Decision Below Will

Encourage Government Actors to

Adopt Clear Policies for Official

Accounts—and Congress Has Led the

Way........................................................... 12

CONCLUSION ........................................................... 16

TABLE OF AUTHORITIES

Page(s)

Cases

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001). ................................... 1, 4, 5, 11

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021). ................... 4, 8, 10, 12

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019). ............................... 4, 8

Hurley v. Irish-American Gay, Lesbian & Bisexual

Grp. of Bos.,

515 U.S. 557 (1995) ................................................ 11

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982). ................................................. 2

New York Times Co. v. Sullivan,

376 U.S. 254 (1964) .................................................. 2

West v. Atkins,

487 U.S. 42 (1988) .................................................... 6

Other Authorities

Facebook Help Center, Differences Between Profiles,

Pages and Groups on Facebook. .............................. 9

Instagram, About Professional Accounts on

Instagram. ................................................................ 9

Members’ Cong. Handbook,

Committee on House Administration, 118th

Congress U.S. House of Representatives. ............. 14

Senate Committee on Rules and Administration,

Internet Services and Technology Resources Usage

Rules (Nov. 9, 2015). ........................................ 13, 14

INTRODUCTION AND INTEREST OF AMICUS1

The state action question in this case implicates

two vital First Amendment rights: that of citizens to

access government fora, and that of public officials to

control with whom and how they communicate when

they speak in their private capacities. As this case

demonstrates, those rights are in tension when it is

not immediately apparent whether a government

representative is operating a social media account in

her public or private capacity.

But Petitioners’ solution is not the answer. They

ask this Court to cut off crucial First Amendment

protections regarding government officials’ speech by

holding that those officials only act in their capacity as

state actors when their actions are affirmatively

required as a state duty or when they invoke state

authority. Pets.’ Br. at 14. Petitioners would thus have

this Court overturn its longstanding recognition that

“no one fact can function as a necessary condition

across the board for finding state action.” Brentwood

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

U.S. 288, 295 (2001). Doing so would allow

government officials to cut off citizens’ right to petition

and communicate directly with their elected

representatives. That is an untenable result, and

inconsistent with the First Amendment’s “profound

national commitment” to “debate on public issues”

1 No counsel for any party authored this brief in whole or in

part, and no entity or person, aside from amicus curiae, its members, and its counsel, made any monetary contribution toward the

preparation or submission of this brief.

that is “uninhibited, robust, and wide-open.” New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Fortunately, that contraction of the public’s First

Amendment rights is not necessary to preserve the

First Amendment rights of government officials. As

the United States Congress has demonstrated,

governmental bodies can and should adopt clear rules

separating official accounts from private ones, thus

“preserving an area of individual freedom” for officials

and citizens alike. See Lugar v. Edmondson Oil Co.,

457 U.S. 922, 936 (1982).

These issues are of particular importance to

amicus Protect the First Foundation (“PT1”), a

nonprofit, nonpartisan organization that advocates for

protecting First Amendment rights in all applicable

arenas and areas of law. PT1 is concerned about all

facets of the First Amendment and advocates on behalf

of all people across the ideological spectrum, including

people who may not even agree with the organization’s

views. The Court’s continued proper interpretation of

the state action doctrine is thus critical to PT1’s

mission, because a finding of state action is necessary

for the First Amendment to apply.

STATEMENT

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

Zane (“Trustees”) are members of the Poway United

School District (“PUSD”) Board of Trustees. Pet. App.

6a. When they ran for the Board, they created campaign Facebook pages. Pet. App. 7a. After they were

elected, each continued to use those Facebook pages to

post content regarding Board business and their activities on the Board. Pet. App. 8a–10a. O’Connor-Ratcliff

changed the “About” section of that Facebook page to

describe herself as a “Government Official” and listed

her “Current Office” as president of the Board, and

provided a link to her official Board email address. Pet.

App. 8a. Zane changed the name of his campaign Facebook page to “T.J. Zane, Poway Unified School District Trustee,” and changed the “About” section to read

“the official page for T.J. Zane, Poway Unified School

District Board Member, to promote public and political

information.” Pet. App. 8a–9a. He too described himself as a “Government Official” on that Facebook page.

Pet. App. 9a.

Frustrated with the Board, Respondents Christopher and Kimberly Garnier began posting lengthy and

repetitive comments on the Trustees’ public Facebook

pages. Pet. App. 11a–12a. Eventually, the Trustees

blocked the Garniers from their public social media accounts. Pet. App. 12a. The Garniers sued, alleging that

those social media pages were public fora, and that, by

blocking them, the officials violated their First

Amendment rights. Pet. App. 13a–14a. The district

court granted judgment to the Garniers, and the Ninth

Circuit affirmed. Pet. App. 15a.

SUMMARY OF ARGUMENT

To preserve the First Amendment rights of both citizens and government officials, this Court’s precedents

indicate that courts must consider all relevant circumstances when determining whether an individual acts

under color of law. See Brentwood, 531 U.S. at 295.

And here, three aspects of the Trustees’ accounts are

especially indicative of state action: their purposes, appearances, and facilitation of government duties. Almost every lower court to consider this question has

recognized the importance of those factors. See, e.g.,

Davison v. Randall, 912 F.3d 666, 680–81 (4th Cir.

2019). But Petitioners ask this Court to ignore those

considerations and instead adopt a narrow test

(adopted by only one circuit to consider the issue) focused exclusively on whether a social media account is

used to fulfill official duties or invokes the authority of

the office. Pets.’ Br. at 14–15.

Adopting that cramped view of state action would

allow Petitioners to restrict citizens’ First Amendment

right to access and comment upon government speech.

And doing so is not necessary to preserve public officials’ First Amendment right to control their private

speech. Indeed, some lower courts have correctly used

a more comprehensive inquiry to distinguish between

campaign accounts and government accounts, even after an official took office. See, e.g., Campbell v. Reisch,

986 F.3d 822, 826–27 (8th Cir. 2021).

The U.S. Congress, moreover, has shown how government bodies can adopt transparent policies to ensure that distinction is clear, and in doing so, can protect the First Amendment rights of officials and the

public. Because it looks to the public’s reasonable

expectations based on multiple relevant factors, the

more comprehensive approach to determining state

action encourages other government actors to follow

Congress’s lead. That approach vindicates both the

First Amendment rights of officials to control their private accounts and those of citizens to access government fora.

Petitioners, by contrast, simply wish to have their

cake and eat it too—by speaking with the authority of

government, but erasing the access of their critics to

that speech. The First Amendment does not allow

them to do so, and this Court should affirm.

ARGUMENT

I. The State Action Inquiry in This and Similar

Cases Should Look to An Account’s Purpose,

Its Appearance, And Whether it Facilitates

Fulfillment of Governmental Duties.

This Court’s precedents suggest that, in

determining which social media accounts are operated

under color of law—and therefore subject to the First

Amendment—courts must look to all relevant

circumstances, as this Court has instructed in other

state action cases. Brentwood, 531 U.S. at 295. Under

that precedent, no single factor is required to establish

state action; rather, all relevant factors must be

considered together to determine whether an account

was operated under color of law. Id.2

2 While no factor is necessary to establish state action, some

factors may be sufficient to do so. For example, the mere fact that

speech appeared on a government-owned website would likely

support a finding of state action.

Amicus writes to highlight three key factors that

should be examined to determine state action in the

social-media setting, both in general and in this case:

an account’s facilitation of actual or apparent

government duties, its purpose, and its appearance.

Because each of those factors points to government

action here, the public had a reasonable expectation

that the Trustees’ accounts were government fora,

with accompanying First Amendment protections.

1. First, consistent with this Court’s presumption

that “[s]tate employment is generally sufficient to

render the defendant a state actor,” West v. Atkins, 487

U.S. 42, 49 (1988) (citations omitted), courts should

examine whether the social media page or account at

issue was created to perform an actual or apparent

duty of the official’s office. Pet. App. 36a.

Petitioners acknowledge this criterion in one

breath, but in the next propose an interpretation of it

so narrow that it would virtually never apply. Pet. Br.

at 24. As Petitioners would have it, courts should

presume there is no state action so long as “no law or

policy requires maintaining a social-media page.” Ibid.

(emphasis added). But that is the wrong test. While it

may be quite rare that a law or regulation

affirmatively compels the use of social media as an

official duty in its own right, there are all kinds of

duties that may be performed using social media, such

as general requirements to communicate with the

public or provide notice. And once an official chooses

to use social media—whether compelled by duty or

not—for office-related purposes, he acts under color of

law, just as if the duty was compelled.

The Ninth Circuit thus properly determined that

the Trustees here “acted under color of state law by

using their social media pages as public fora in

carrying out their official duties.” Pet. App. 6a. The

Trustees’ posts included topics such as the selection of

a new superintendent, specific school district plans,

and dates and agendas of school board meetings. Pet.

App. 34a–35a. In making posts about school board

duties, the Trustees also fulfilled a duty under the

California Educational Code to keep citizens apprised

of the district’s “educational programs and activities.”

Pet. App. 24a. That fulfillment of an official duty was

strong evidence that the Trustees acted under color of

law in their social media activities.

2. Next, courts should consider an account’s

purpose, including whether it was used “as a tool of

governance.” Pet. App. 30a. This factor is critical

because it reflects the expectations of both the public

and the official for the social media activity. Even if

communication was not a required duty of the

Trustees’ offices (though here it was, as explained

above), by using their social media accounts to

communicate about government business, the

Trustees made clear that their accounts served a

public, not private, purpose. The court below thus

appropriately held that the Trustees engaged in state

action because they “routinely used their social media

as a tool of governance” to “notify the public about

PUSD board meetings and the subjects discussed

during those meetings, to inform parents about

significant public safety issues such as fires and active

shooters, [and] to announce policy decisions and

initiatives such as the selection of a new PUSD

superintendent.” Pet. App. 34a–35a (internal

quotation marks and citations omitted).

Other circuits have also recognized the importance

of this criterion. For example, the Fourth Circuit

recognized that a municipal official used a Facebook

account “as a tool of governance” by “provid[ing]

information to the public” about her official activities,

“solicit[ing] input from the public” on decisions,

“inform[ing] the public about serious public safety

events,” and “keep[ing] her constituents abreast” of

governmental responses to severe weather events.

Davison, 912 F.3d at 680 (citation omitted). Posts like

these signal to the public that an account’s purpose is

to communicate about official government business—

and that the public can expect access to the forum on

which that communication takes place.

To be sure, however, an account’s purpose is not

governmental simply because it discusses politics and

an official’s accomplishments. As the Eighth Circuit

recognized in Campbell, posts about policy

accomplishments often evince a private campaign

purpose when an official uses her account “in the main

to promote herself and position herself for more

electoral success down the road.” Campbell, 986 F.3d

at 826. But this Court need not adopt Petitioners’

overly narrow test to preserve that distinction—the

Campbell decision proves that courts are capable of

doing so without adopting Petitioners’ crabbed

approach.

3. Finally, the appearance of an official’s social

media pages or profile can also indicate state action. If

an official has “clothed [the profile] in ‘the power and

prestige of [the] state office,’” it is strong evidence that

he acts under color of law. Davison, 912 F.3d, at 681

(quoting Harris v. Harvey, 605 F.2d 330, 337 (7th Cir.

1979)). When an official gives his profile an air of

governmental legitimacy, the public comes to rely on

it for state-provided information.

The Trustees here took every opportunity to cloak

their social media accounts with the aura of

government authority. Rather than categorizing their

Facebook pages as those of a “Politician”—an option

Facebook provides—each selected “Government

Official.”3 Resps.’ Br. at 8–9. Zane titled his Facebook

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

Trustee”—not, for example, “Re-Elect T.J. Zane to the

PUSD Board of Trustees.” Pet. App. 8a–9a. And he

even described the page as “the official page for T.J.

Zane, Poway Unified School District Board Member,

3 Although official categorization like the “Government

Official” category the Trustees adopted is strong evidence of state

action, courts must also look to other elements of an account’s

appearance. Different social media platforms have varying ways

of indicating different types of accounts, making it difficult to rely

on platform designations to distinguish official accounts from

private ones. For example, although Facebook has “pages” in

addition to “profiles” that act and look functionally distinct to

indicate public-facing digital spaces versus private ones, other

platforms sometimes have fewer options to make such a

distinction. On Instagram, for example, profiles for businesses

and public officials look similar to profiles for private individuals,

with the difference mostly on the backend where professional

marketing insights are available. Compare Facebook Help

Center, Differences Between Profiles, Pages and Groups on

Facebook,

https://www.facebook.com/help/337881706729661,

(last accessed Aug. 9, 2023) with Instagram, About Professional

Accounts

Instagram,

https://help.instagram.com/138925576505882/?helpref=related_

articles (last accessed Aug. 9, 2023). Thus, the core question must

be whether, based on the factors discussed above, a reasonable

person would perceive that public officials are “h[olding] their

social media pages out to be official channels of communication.”

Pet. App. 3a.

to promote public and political information.” Pet. App.

9a (emphasis added). And O’Connor-Ratcliff too

invoked her office, listing herself as “President of the

PUSD Board of Education” and providing a link to her

official PUSD email address, not a campaign account.

Pet. App. 8a. In short, the Trustees thus made clear

that they were speaking as agents of the state—not as

private citizens or as candidates seeking another term.

In short, where as here a government official has

used a social media account to facilitate actual or

apparent government duties, purposed his social

media account to communicate about government

business, and clothed it in the appearance of official

authority, he cannot then cut citizens off from that

account. Adopting Petitioner’s restrictive test would

require courts to ignore these crucial factors and

permit government officials to abridge citizens’ First

Amendment rights. This Court should reject that

approach, and instead look to the three factors

discussed above.

II. As Illustrated by Congress’s Practice, A More

Comprehensive Approach Is Workable and

Encourages Government Bodies to Adopt

Clear Standards Regarding Official Speech.

To be sure, not all social media activities of those

who hold public office are state action, and the public

has no claim on private speech. As the Eighth Circuit

recognized, this Court’s holding in Hurley compels the

conclusion that a candidate’s “own First Amendment

right to craft her campaign materials necessarily

trumps [a citizen’s] desire to convey a message on her

[social media] page that she does not wish to convey,”

Campbell, 986 F.3d at 827 (8th Cir. 2021) (citing

Hurley v. Irish-American Gay, Lesbian & Bisexual

Grp. of Bos., 515 U.S. 557, 559 (1995)). That recognition satisfies the “judicial obligation *** to preserve an

area of individual freedom by limiting the reach of federal law and avoid[ing] the imposition of responsibility

on a State for conduct it could not control.” Brentwood,

531 U.S. at 295 (cleaned up). But that judicial obligation does not extend to ignoring key factors that indicate state action.

Nor need courts do so: As explained below,

Congress has shown that developing clear standards

for distinguishing between official government

accounts and private accounts is workable. Such

standards are consistent with the more comprehensive

state action inquiry called for by this Court’s

precedents, and they prevent confusion as to what

speech triggers First Amendment protections, and

what speech does not.

A. A More Comprehensive State Action Inquiry Adequately Distinguishes Between

Public and Private Accounts.

As this case illustrates, courts will sometimes be

confronted with social media accounts used for both

government and private purposes. And in some cases,

like this one, those mixed-purpose accounts will have

begun their life as indisputably private campaign

accounts, for which only the candidate’s First

Amendment rights—not the public’s—are at issue.

That is no reason, however, to constrain judicial

review to the limited factors urged by Petitioners. The

fact that speech fairly attributable to the state can be

entwined with private speech is precisely why a more

comprehensive test is necessary.

The Eighth Circuit’s decision in Campbell shows

that a more comprehensive approach is workable and

an adequate tool to distinguish between public and

private speech. 986 F.3d 822 (8th Cir. 2021). Applying

the approach of the majority of circuits, the court there

decided that there was no state action where a public

official’s social media account was used “to promote

herself and position herself for more electoral success

down the road,” not to conduct “official governmental

activity.” Id. at 826.

Applying that same test commands the opposite

result here. Like the public official in that case, the

Trustees here began their accounts as campaign

accounts. Pet. App. 5a. But the “essential character” of

a social media account is not “fixed forever,” and “a

private account can turn into a governmental one if it

becomes an organ of official business[.]” Campbell, 986

F.3d, at 826. Unlike the “occasional stray messages”

that could be conceived of as conducting the

government’s business, id. at 827, once the Trustees

took office, their accounts were dedicated almost

entirely to communicating government business,

including soliciting applications for government

volunteers and government surveys regarding school

district issues. Pet. App. 9a–10a.

B. Affirming the Decision Below Will Encourage Government Actors to Adopt Clear

Policies for Official Accounts—and Congress Has Led the Way.

Adhering to a more comprehensive analysis of the

state action inquiry will not, as Petitioners argue (at

33–34), lead to a decrease in speech by government

officials. Instead, considering factors like the

appearance of the account’s pages will encourage

public officials to make intentional distinctions in

their official and private social media activity—and to

be sure that, when they wish to retain the right to

limit speech within a forum they create, they do not

swathe that forum with the trappings of government

authority.

1. Congress has marked the path for other

government actors to follow. Both chambers have

developed clear standards to distinguish between

their members’ official accounts and their private

accounts—including campaign accounts. The Senate’s

policies state that official accounts are those “a Senate

Office uses for official business,” and can be used only

for

official

business—not

for

campaigning,

fundraising, or any other private purpose.4 In turn,

official business is clearly defined as:

activities and duties which directly or

indirectly pertain to the legislative process or to

any congressional representative functions

generally, or to the functioning, working, or

operating of the Congress and the performance

of official duties in connection therewith, and

shall include, but not be limited to, the

conveying of information to the public, and the

requesting and collection of the views of the

public (including through surveys, opinion

polls, and web data analytics), or the views and

information of other governmental entities, as

4 Senate Committee on Rules and Administration, Internet

Services and Technology Resources Usage Rules (Nov. 9, 2015),

https://www.senate.gov/usage/internetpolicy.htm.

a guide or a means of assistance in the

performance of those functions.5

In other words, Senate rules require that official

accounts can be used only to facilitate Senate duties

or to communicate with the public about government

business.

Likewise, on the House side, the Members’

Congressional Handbook instructs that official

congressional social media accounts should only post

content that is “germane to the conduct of the

Member’s official and representational duties” and

“not include personal (outside of incidental references)

*** information.”6 It further instructs representatives

to “ensure their social media URLs and account names

reflect their position” and provides that former House

members “may retain their personal accounts

provided the name (and other identifying information)

of such accounts clearly do not convey the impression

that the former Member is still a Member of the

House, or that the account is an official account of the

House.”7

That kind of clarity is good for everyone. It draws

clear lines for government officials to ensure that their

private speech remains private. And it protects citizens from being cut off from government speech, which

5 Id.

Members’ Cong. Handbook, Committee on House Administration, 118th Congress U.S. House of Representatives 38 (last

updated Mar. 31, 2023), https://cha.house.gov/member-services/handbooks/members-congressional-handbook.

7 Id. at 39.

they have a First Amendment right to both access and

address.

2. Congress’ practice reflects all three considerations described in Section I, and thus ensures that official accounts are accessible to the public, while Congress’s members retain the prerogative to govern access to their private campaign accounts. As noted, under Congress’s rules, an official account must be used

only to facilitate government duties; its purpose must

be to communicate about government business; and its

appearance must make clear that the senator or representative speaks with the authority of his office. A

private account, in contrast, is used to facilitate private functions like campaigning and fundraising; its

purpose is to promote the official, enhance his reelection prospects, and fulfill other non-governmental purposes; and its appearance must not include the trappings of governmental authority. By implicitly incorporating all three of those criteria, Congress makes

clear to the public when its members speak under color

of law, and when they do not.

In sum, continuing to apply the comprehensive test

adopted in Brentwood—with a focus on the three factors discussed here—will encourage other government

actors to follow Congress’s lead and adopt clear policies governing the use of official accounts. Application

of that framework will protect the First Amendment

rights of officials and citizens alike.

CONCLUSION

Petitioners ask this Court to reduce the complex

question of state action to a rigid examination of only

two aspects of a government official’s social media

activity. Doing so would stymie the debate on public

issues that takes place on the most important forums

of our time. This Court should decline that invitation

and affirm the decision below.

Respectfully submitted,