The 9th Circuit Got This One Right

A recent Wall Street Journal opinion concerned the question of when, or whether, a political figure who creates a personal social media account(s) can bar members of the public from interacting with those accounts. In

Michelle O’Connor-Ratcliff and TJ Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news. The officials blocked two parents for making “repetitious and non-responsive comments” on their pages.

In O‘Connor-Ratcliff v Garnier, the 9th Circuit said the two board members could not do that.

The panel held that, under the circumstances presented here, the Trustees acted under color of state law by using their social media pages as public fora in carrying out their official duties. The panel further held that, applying First Amendment public forum criteria, the restrictions imposed on the plaintiffs’ expression were not appropriately tailored to serve a significant governmental interest and so were invalid.


The protections of the First Amendment apply no less to the “vast democratic forums of the Internet” than they do to the bulletin boards or town halls of the corporeal world. … When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.

The editors generally disagreed with this ruling, and they closed their piece with this bit.

Americans have many platforms to criticize public officials without invading their personal social-media pages.

That’s plainly true. So, too, is the related: elected politicians (the editors seem to have subsumed—erroneously—unelected bureaucrats into the term “public officials,” whereas the court’s ruling plainly concerned only elected officials) have many platforms with which to describe, and to interact with their constituents regarding, their political and official doings without using their so-called personal accounts to do so and then limiting their constituents’, and the public-at-large’s, ability to respond and to petition [them], whether courteously or rudely.

I’ll go one farther than did the 9th. It’s not possible for an elected government official to have a personal social media account. An elected official represents his constituents at all times of the day and night, every day and night of every year he holds office, for all that as a practical matter, he takes time away from his duties to rest and recreate. From that, it’s impossible for him to have a non-public social media account so long as he holds elected office.

The 9th got this one right.

The Circuit Court’s ruling can be read here.

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