ORAL ARGUMENT REVIEW: O'Connor-Ratcliff v. Garnier (22-324) - 10/31/2023


"Certainty is an illusion ..."
Honoured Citizen
The Supreme Court heard two arguments on Tuesday, both very closely related First Amendment cases. While both dealt with the intersection of the First Amendment with the modern world of social media, the questions presented differed enough that the cases were not consolidated. Despite this, the second case was obliquely mentioned several times during the first argument, and it is definitely possible that the ultimate resolution of both cases will turn on the same test. Since the court deal with these cases separately, I am also going to write them up separately. I'm hoping to get the second case of the day written up tomorrow, with a writeup on the case argued on November 1 at some point on Friday.

This case involved two members of the Poway (CA) Unified School District board who created Facebook accounts to promote their campaigns, and then turned them into pages associated with their work on the board. Two parents in the district, who had been publicly active at board meetings and highly critical of the way the district was run, began actively commenting with log rants on the facebook pages - behavior that frustrated the school board officials enough that they blocked the parents. This cut the parents off from interacting with the page by commenting and reacting. The parents sued, alleging that blocking them from interacting with the pages constituted state action by public officials that violated their First Amendment rights to interact with public officials conducting official business.

The 9th Circuit found on behalf of the parents, saying that any reasonable observer looking at the websites would believe that they were official pages because the content showed the officials doing school board business, rendering the blocking to be state action that offended the First Amendment rights of the parents. The Court specifically granted certiorari related to the following question:

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.

The argument for the Petitioner/Defendant school board members rests very heavily on the idea of who owns the site on which the information is posted. Their counsel continually refers to the facebook page as "private property," saying that it was created as a campaign page and is used for business that anyone is beyond the scope of the duties imposed on the board members. In other words, while their speech on the facebook page is related to the work they do on the board, it is not speech that they are somehow required to make - they have to "duty" to make those communications. The "duty" issue would come up throughout the argument, with several of the Justices looking to establish what exactly constitutes a duty and how far that duty extends. Essentially, no matter what the website looks like or whether or not it appears to be official, public officials are free to post whatever they want to on it, and to moderate it as they see fit, unless they are carrying out public business that they have a duty to perform, at which point they would convert posts on the page into state action, in which case they could likely only block people who were violating standards through threats or other comments that fell outside acceptable levels (just as you couldn't walk into a library and make threats of violence to the patrons without being removed).

The school board members also argued that there is nothing particularly novel about this way of looking at the situation, and compared it to off-line behavior that has been going on since the start of the Republic. Public officials often speak in front of groups of people who are favorable to them, excluding those who disagree, about public matters, or about strategic decision-making, or about their particular concerns. Nothing requires them to only speak in front of public groups when they are speaking about public business - they simply are not required to provide the same level of access to their time to everyone. Only if they have a particular, specific duty associated with public access to them would that be a requirement. Similarly, only if the page in question was used to provide information to the public that the public official had a particular, specific duty to provide would they be unable to make moderator decisions on whatever whim they wanted to. This is simply because public officials do not lose their Constitutional rights by virtue of holding public office.

On the other side of the argument, the parents argue that the "duty and authority" test that has been used to this point - most notably by the 6th Circuit - is too narrow to do the job. Under that test, something is only a duty if there is a specific written requirement to carry out that task. The parents pointed out that duties can be customary, not explicit. Further, not all explicit duties are necessarily written down. As a result, the 6th Circuit's argument doesn't really pass muster. Despite this, the framework of the argument actually seems to have been adopted by the Respondents - or at least several Justices think so - as much of the argument centered on how you know if something constitutes a duty or not. Justice Gorsuch even asks if it isn't the case that the two sides are really all arguing about the same test and only disagreeing over how to measure the duties in question.

Interestingly, the kind of "got ya!" moments and partisan wrangling was avoided here - and I think that's because neither "side" benefits from one ruling versus another - local officials are from both parties, as are the people who comment on local official's pages. As a result, the incentives are all on actually resolving the Constitutional question with the minimum of fuss. This makes things somewhat unpredictable, but I think the end result is going to be an affirmation of the "duty and authority" test that the public official's (and the US government as amici) are arguing in favor of, although as is often a tradition for First Amendment decisions it will probably be hard to follow and apply.