That is the question in a California case in which two citizens sued on First Amendment grounds after board members blocked them from posting on the board members’ Facebook and Twitter accounts.  The board members blocked the citizens after they posted negative comments about school district matters.

The board members filed a motion to dismiss arguing that they could not be sued individually for First Amendment violations.  The court disagreed and recognized that government officials may be sued in their individual capacities for alleged constitutional violations if they were acting under color of state law.

The board members next asserted that they were not acting under color of state law when they blocked the citizens from posting on their personal social media accounts.  The court again disagreed.

In a similar case, a county resident sued the chairperson of the county board of supervisors for blocking the resident from the chairperson’s personal Facebook page.  The Fourth Circuit Court of Appeals found that the resident had alleged a valid claim. Although the chairperson’s Facebook page was private, her actions in blocking the resident from posting arose out of public, not personal, circumstances.  The record in that case showed that the chairperson created the page in collaboration with her chief of staff the day before taking office and did so for the purpose of addressing her constituents. The chairperson also asked constituents to visit her Facebook page and, after taking office, used the page as a “tool for governance.”

Similarly in this case, the lawsuit alleged that the board members maintained social media accounts in order to communicate with the public about official school district matters.  According to the suit, one board member’s account said it was the “official page” for the board member to promote public and political information. His account had a picture of a school district sign and listed his interests as “being accessible and accountable; retaining quality teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety.”  The suit claimed that the other board member’s Facebook account included a “Political Info” section, identified her as a board member for the school district, and also identified her as a “Government Official.”

According to the trial court, these allegations were sufficient to overcome the board members’ motion to dismiss.  The court stated that it was “reasonable to infer” that the board members “used their private social media accounts as a tool for governance.”  As a result, the suit adequately alleged that the board members acted under color of law when they blocked the citizens from posting messages on their Facebook and Twitter accounts.  The trial court allowed the case to proceed.

See Garnier v. Poway Unified School District, Dkt. No. 17-CV-2215-W(JLB) (S.D. Cal. May 24, 2018).

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