City Attorney’s/City Prosecutor’s Department – Civil Division FEDERAL APPELLATE COURT DECISIONS REGARDING PUBLIC OFFICIALS’ USE OF SOCIAL MEDIA PAGESSeptember 19, 2022Javan N. RadChief Assistant City Attorney City Attorney’s/City Prosecutor’s Department – Civil Division Recent News re: Settlements of First Amendment Lawsuits Arising from Public Official Blocking of Constituents on Social Media 2 City Attorney’s/City Prosecutor’s Department – Civil Division Davidson v. Randall 912 F.3d 666 (4th Cir. 2019)•Randall created “Chair Phyllis J. Randall” Facebook page one day before she was sworn in as Chair of County Board of Supervisors•Randall posted on Chair’s Facebook page about “town hall” meeting•Davison commented on page•Randall (a) deleted the post/comments; and (b) blocked Davison3
City Attorney’s/City Prosecutor’s Department – Civil Division Davison v. Randall (cont.)•Fourth Circuit affirmed judgment in favor of Davison•Randall acted under color of law•Davison prevailed against Randall on First Amendment claim>Interactive component of Facebook page → public forum>Randall engaged in viewpoint discrimination4 City Attorney’s/City Prosecutor’s Department – Civil Division Robinson v. Hunt County, Texas921 F.3d 440 (5th Cir. 2019) •Plaintiff posted negative comment on Sheriff’s Facebook page>Comments deleted / banned from commenting•Fifth Circuit found Plaintiff should have been able to proceed in litigation with claims against Sheriff’s Office>Court assumed Facebook page is a public forum>Plaintiff properly alleged that Sheriff’s Office has a policy of viewpoint discrimination on Facebook page 5
City Attorney’s/City Prosecutor’s Department – Civil Division Knight First Amendment Institute v. Trump928 F.3d 226 (2d Cir. 2019) (cert. granted, judgment vacated as moot)•President blocked certain Twitter users from his Twitter account•District Court granted users’ Motion for Summary Judgment•Second Circuit affirmed>President’s use of Twitter account created a “public forum”>Blocking of Plaintiffs → viewpoint discriminationRejected argument that “workarounds” could still allow for viewing tweets City Attorney’s/City Prosecutor’s Department – Civil Division Campbell v. Reisch986 F.3d 822 (8th Cir. 2021)•Missouri state representative candidate created Twitter account same day she announced candidacy•Solicited donations to campaign, support for candidacy•Post-election purpose of account “seems” to be for promoting and positioning Reisch for more electoral successes•Twitter feed only "occasionally" used for updates on bills7 City Attorney’s/City Prosecutor’s Department – Civil Division Campbell v. Reisch(cont.)•Eighth Circuit found Reisch not acting under color of state law when blocking constituent from Twitter>Account is "akin to a campaign newsletter">Post-election use of account too similar to pre-election use to suggest private account had "morphed" into government one8 City Attorney’s/City Prosecutor’s Department – Civil Division Lindke v. Freed37 F.4th 1199 (6th Cir. 2022)•Port Huron, Michigan City Manager updated personal Facebook page to reflect job title, with contact info as city (not personal) email•"Medley" of posts from personal to city business•Lindke posted comments on City Manager’s page expressing disapproval of City Manager’s handling of COVID-19 pandemic•Freed blocked Lindke from the pageCi City Attorney’s/City Prosecutor’s Department – Civil Division Lindke v. Freed (cont.)•Sixth Circuit held that City Manager operated his Facebook page in personal capacity – not state action – departing from other circuits•Focused on actor’s official duties and use of government resources/employees – and did not examine page’s appearance or purpose (as was the case with other circuits)>Facebook use not required by law, page does not depend on status as City Manager, and page not funded by government>“When Freed visits the hardware store, chats with neighbors, or attends church services, he isn't engaged in state action merely because he’s ‘communicating’—even if he's talking about his job”10 City Attorney’s/City Prosecutor’s Department – Civil Division Garnier v. O'Connor-Ratliff41 F.4th 1158 (9th Cir. 2022)•O'Connor-Ratliff and Zane created Facebook and Twitter pages to campaign for Poway USD Board of Trustees•Both candidates (now Trustees) won election•Trustees then used same social media pages to inform residents and solicit feedback about items concerning school district business or promoting school district generally>Garniers posted (often repetitive) criticisms in comments•Trustees ultimately blocked Garniers11 City Attorney’s/City Prosecutor’s Department – Civil Division Garnier v. O'Connor-Ratliff (cont.)•Two-day bench trial – District Court held that blocking Garniers indefinitely not "narrowly tailored" to avoid repetitive comments on Trustees pages•School district incurred $164,000 in fees through trial•Ninth Circuit held that Trustees’ blocking of Garniersconstitutes state action•Close nexus between social media pages and official positions12 City Attorney’s/City Prosecutor’s Department – Civil Division Options for Public Officials•If discussing personal and City business on same social media page, if comments are deleted and/or users blocked, there may be First Amendment liability•Options to consider>Do not discuss City business on personal social media>Ban all comments on social media pages>Create dual accounts on social media platform, i.e., one for personal use, and one for City business13