FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER GARNIER; KIMBERLY 

GARNIER,

Plaintiffs-Appellees/

Cross-Appellants,

v.

MICHELLE O’CONNOR-RATCLIFF;

T.J. ZANE,

Defendants-Appellants/

Cross-Appellees.

Nos. 21-55118

 21-55157

D.C. No.

3:17-cv-02215-

BEN-JLB

OPINION

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted March 11, 2022

Pasadena, California

Filed July 27, 2022

Before: Marsha S. Berzon, Richard C. Tallman, and 

Michelle T. Friedland, Circuit Judges.

Opinion by Judge Berzon
2 GARNIER V. O’CONNOR-RATCLIFF

SUMMARY*

Civil Rights

The panel affirmed the district court’s bench trial 

judgment in favor of plaintiffs in an action brought pursuant 

to 42 U.S.C. § 1983 alleging that two members of the Poway 

Unified School District Board of Trustees violated plaintiffs’

First Amendment rights by ejecting plaintiffs from social 

media pages that the Trustees had used to communicate with 

constituents about public issues. 

The panel noted that plaintiffs’ claims presented an issue 

of first impression in this Circuit: whether a state official 

violates the First Amendment by creating a publicly 

accessible social media page related to his or her official 

duties and then blocking certain members of the public from 

that page because of the nature of their comments.

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 panel concluded that the Trustees violated 

plaintiffs’ First Amendment rights and that the district court 

was therefore correct to grant plaintiffs declaratory and 

injunctive relief.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GARNIER V. O’CONNOR-RATCLIFF 3

The panel rejected the Trustees’ assertion that the dispute 

was moot because after plaintiffs filed their lawsuit, the 

Trustees began using a word filter on Facebook to prevent 

any new comments from being posted on their Facebook 

pages, thereby closing the Facebook pages as public fora. 

The panel held that: (1) using a word filter on Facebook 

would not affect plaintiff Christopher Garnier’s claims 

involving being blocked from Twitter; (2) the word filter 

limit did not change Facebook’s non-verbal “reaction” 

feature; and (3) the Trustees failed to carry their burden of 

showing they would not, in the future, remove the word 

filters from their Facebook pages and again open those pages 

up for verbal comments from the public.

The panel next rejected the Trustees’ assertion that 

creating, maintaining, and blocking plaintiffs from their 

social media accounts did not constitute state action under 

§ 1983. Both through appearance and content, the Trustees 

held their social media pages out to be official channels of 

communication with the public about the work of the Poway 

Unified School District Board. Given the close nexus 

between the Trustees’ use of their social media pages and 

their official positions, the Trustees in this case were acting 

under color of state law when they blocked plaintiffs.

The panel rejected the Trustees’ assertion that blocking 

plaintiffs was a narrowly tailored time, place, or manner 

restriction. Even if plaintiffs’ comments did interfere with 

the Trustees’ interests in facilitating discussion or avoiding 

disruption on their social media pages, the Trustees’ decision 

to block plaintiffs burdened substantially more speech than 

was necessary and therefore was not narrowly tailored. 

Addressing plaintiffs’ cross appeal, the panel held that 

the district court correctly concluded that at the time the 
4 GARNIER V. O’CONNOR-RATCLIFF

Trustees blocked plaintiffs, it was not clearly established that 

plaintiffs had a First Amendment right to post comments on 

a public official’s Facebook or Twitter page. The district 

court therefore did not err by granting qualified immunity to 

the Trustees as to plaintiffs’ damages claim. Finally, the 

panel determined that it lacked jurisdiction to consider 

whether the district court erred by denying, without 

prejudice, defendants’ motion to retax costs.

COUNSEL

Jack M. Sleeth Jr. (argued) and Paul V. Carelli, IV, Artiano 

Shinoff, San Diego, California, for DefendantsAppellants/Cross-Appellees.

Cory J. Briggs (argued), Briggs Law Corporation, Upland, 

California, for Plaintiffs-Appellees/Cross-Appellants.

OPINION

BERZON, Circuit Judge:

Today, social media websites like Facebook and Twitter 

are, for many, “the principal sources for knowing current 

events, checking ads for employment, speaking and listening 

in the modern public square, and otherwise exploring the 

vast realms of human thought and knowledge.” Packingham 

v. North Carolina, 137 S. Ct. 1730, 1737 (2017). 

Accordingly, social media sites “can provide perhaps the 

most powerful mechanisms available to a private citizen to 

make his or her voice heard.” Id.
GARNIER V. O’CONNOR-RATCLIFF 5

Unsurprisingly, social media’s capacity for facilitating 

communication and stirring public debate has not been lost 

on public officials. From local county supervisors and state 

representatives to the President of the United States, elected 

officials across the country increasingly rely on social media 

both to promote their campaigns and, after election, to 

communicate with constituents and seek their input in

carrying out their duties as public officials.

This case concerns a dispute arising from two public 

officials’ use of social media to communicate with 

constituents about public issues. Beginning around 2014, 

two members of the Poway Unified School District 

(“PUSD” or the “District”) Board of Trustees, Michelle 

O’Connor-Ratcliff and T.J. Zane (together, “the Trustees”), 

created public Facebook and Twitter pages to promote their 

campaigns for office. After they won and assumed office, 

the two used their public social media pages to inform 

constituents about goings-on at the School District and on 

the PUSD Board, to invite the public to Board meetings, to 

solicit input about important Board decisions, and to 

communicate with parents about safety and security issues 

at the District’s schools.

But public engagement with their social media pages was 

not all s and s. Two parents of children in the School 

District, Christopher and Kimberly Garnier, frequently left 

comments critical of the Trustees and the Board on the 

Trustees’ pages, sometimes posting the same long criticisms 

repeatedly. After deleting or hiding the Garniers’ repetitive 

comments for a time, the Trustees eventually blocked the 

Garniers entirely from their social media pages. The 

Garniers sued, asserting that the Trustees violated their First 

Amendment rights by ejecting them from the social media 

pages. After a bench trial, the district court agreed with the 
6 GARNIER V. O’CONNOR-RATCLIFF

Garniers that their First Amendment rights had been 

violated. Both parties appeal.

The Garniers’ claims present an issue of first impression 

in this Circuit: whether a state official violates the First 

Amendment by creating a publicly accessible social media 

page related to his or her official duties and then blocking 

certain members of the public from that page because of the 

nature of their comments. For the following reasons, we 

hold that, under the circumstances presented here, the 

Trustees have acted under color of state law by using their 

social media pages as public fora in carrying out their official 

duties. We further hold that, applying First Amendment 

public forum criteria, the restrictions imposed on the 

Garniers’ expression are not appropriately tailored to serve 

a significant governmental interest and so are invalid. We 

therefore affirm the district court judgment.

I. BACKGROUND

A. Facts

Michelle O’Connor-Ratcliff and T.J. Zane successfully 

ran for election to the PUSD Board of Trustees in November 

2014, positions they still hold. In addition to their private 

Facebook pages, which they shared only with family and 

friends, O’Connor-Ratcliff and Zane created public 

Facebook pages to promote their political campaigns. In 

2016, O’Connor-Ratcliff also created a public Twitter page 

related to her activities as a PUSD trustee.1

Only the Trustees could create original “posts” on their 

public Facebook pages. Members of the public who chose 

1 Zane’s Twitter page is not at issue in this appeal.
GARNIER V. O’CONNOR-RATCLIFF 7

to like or follow the public pages were able to post 

“comments” beneath the Trustees’ posts. Viewers could 

also register non-verbal emoticon “reactions” to posts, such 

as a “thumbs-up” reaction to “like” the post, a heart, or an 

angry face. Facebook automatically truncates lengthy 

comments that a Facebook user makes on another user’s 

posts. Viewers of the post on which the comment was made 

must click a “See More” button on the comment to read more 

than the first few lines of a comment’s text. Accordingly, 

viewers of the Trustees’ Facebook pages could easily scroll 

past the truncated version of long comments they did not 

wish to read. Unlike on Facebook, when viewing another 

person’s Twitter profile, comments left by other Twitter 

users on the account owner’s posts—called “replies,” rather 

than comments—are not immediately visible. To see those 

replies, viewers must click on the specific Tweet and then 

scroll down to see individual replies.

Both Facebook and Twitter provide the Trustees with 

some ability to moderate the content of comments on their 

pages. Although the Trustees cannot turn off comments on 

either platform, they can “delete” or “hide” individual 

comments, thereby removing them entirely or making them 

visible only to the Trustee and the person who posted the 

comment.2 Additionally, the Trustees can limit verbal 

comments by using Facebook’s “word filter” function, 

which allows a page owner to create a list of words that, if 

2 At the time the Garniers filed their lawsuit, Twitter did not permit 

users to hide other users’ replies to their Tweets without blocking those 

users entirely. Twitter adopted a reply-hiding feature in 2019. Kayla 

Yurieff, Twitter Now Lets You Hide Replies to Your Tweets, CNN Bus.

(Nov. 21, 2019), https://www.cnn.com/2019/11/21/tech/twitter-hidereplies/index.html; see also About Replies and Mentions, Twitter Help

Ctr., https://help.twitter.com/en/using-twitter/mentions-and-replies#

hidden-reply-video (last visited June 14, 2022).
8 GARNIER V. O’CONNOR-RATCLIFF

used in a comment, will prevent the comment from 

appearing beneath the page owner’s post.

The Trustees can also “block” Facebook and Twitter 

users. Blocking a Facebook user prevents that user from 

commenting on or registering a non-verbal reaction to the 

posts on the blocker’s page, but the user is still able to 

continue viewing the public Facebook page. In contrast, on 

Twitter, once a user has been “blocked,” the individual can 

neither interact with nor view the blocker’s Twitter feed.

Although before assuming office, the Trustees originally 

used their social media pages to promote their campaigns, 

they continued to use those pages to post content related to 

PUSD business and the activities of the Board after winning 

their elections. In the “About” section of her public 

Facebook page, O’Connor-Ratcliff described herself as a 

“Government Official,” listed her “Current Office” as 

President of the PUSD Board of Education, and provided a 

link to her PUSD official email address. Zane titled his 

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

Trustee,” and in the “About” section, he described his 

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

School District Board Member, to promote public and 

political information.” Like O’Connor-Ratcliff, Zane 

described himself as a “Government Official,” and he 

described his interests as including “being accessible and 

accountable; retaining quality teachers; increasing 

transparency in decision making; preserving local standards 

for education; and ensuring our children’s campus safety.”

Some of the Trustees’ posts described visits to PUSD’s 

schools and promoted the achievements of the District’s 

students and teachers. In other posts, O’Connor-Ratcliff and 

Zane reported on PUSD Board-related business. For 

instance, on several occasions, O’Connor-Ratcliff posted 
GARNIER V. O’CONNOR-RATCLIFF 9

announcements soliciting students and community members 

to apply for representative positions with the PUSD Board, 

including the PUSD Student Board of Education, the Budget 

Review Advisory Committee, and the Educational 

Technology Advisory Committee. The Trustees also posted 

information about PUSD’s Local Control Accountability 

Plan (“LCAP”)—a three-year budgetary plan required by 

California law “that describes the goals, actions, services, 

and expenditures to support positive student outcomes that 

address state and local priorities.”3 See Cal. Educ. Code 

§ 52060. In those posts, the Trustees invited the public to 

fill out surveys related to the LCAP formulation process, 

shared information about in-person community fora related 

to LCAP planning, and reported on the plans ultimately 

adopted by the Board.

Additionally, the Trustees posted about the PUSD 

Board’s superintendent hiring and firing decisions, including 

announcing the Board’s decision to terminate thenSuperintendent John Collins, inviting members of the public 

to fill out online surveys and attend community fora 

regarding the selection of a new superintendent, and 

providing updates regarding superintendent applicants and 

the ultimate hiring decision. The Trustees also posted 

reminders to the public about upcoming PUSD Board 

meetings and regularly shared their own recaps of important 

issues discussed at Board meetings, such as bond issuance 

decisions, employee contract negotiations, and priorities for 

the upcoming school year.

Occasionally, the Trustees also used their social media 

pages to alert the public about safety and security issues at 

3 See Local Control and Accountability Plan (LCAP), Cal. Dep’t of 

Educ. (Apr. 13, 2022), https://www.cde.ca.gov/re/lc/. 
10 GARNIER V. O’CONNOR-RATCLIFF

PUSD. For instance, Zane posted about lockdowns 

following threats to students, an active shooter incident near 

one PUSD school, and an ongoing brush fire that forced the 

evacuation of another PUSD school.

Neither O’Connor-Ratcliff nor Zane established any 

rules of etiquette or decorum regulating how the public was 

to interact with their social media accounts. There were, for 

example, no size or subject limits set for comments. The 

Trustees both occasionally solicited feedback from 

constituents through their posts or responded to constituent 

questions and comments. For instance, in a post providing a 

summary of important issues discussed at a PUSD Board 

meeting—one in a series of posts O’Connor-Ratcliff called 

“The Board according to Michelle”—O’Connor-Ratcliff 

noted that she had “received some good comments” to prior 

posts and had “made some changes to the structure” of her 

Board meeting summaries in response to those comments. 

In June 2017, Zane posted a San Diego Union-Tribune 

editorial about PUSD’s move from at-large voting to a 

single-member district system, noting that he “agree[d] with 

this editorial” and asking constituents, “what say you?”

Among the constituents who frequently commented on 

the Trustees’ social media pages were Christopher and 

Kimberly Garnier. The Garniers, who have children 

attending PUSD schools, have for years been active 

members of the PUSD community. In the years leading up 

to the dispute at issue in this case, the Garniers were 

especially vocal critics of the Board, particularly regarding 

race relations in the District, and alleged financial 

wrongdoing by then-Superintendent John Collins.4 To 

4 Relations between the Garniers and PUSD further soured around 

2014. Following two incidents involving Christopher Garnier, District 
GARNIER V. O’CONNOR-RATCLIFF 11

express their concerns about these and other issues, the 

Garniers regularly attended public meetings of the PUSD 

Board of Trustees, emailed PUSD Trustees regarding their 

concerns, and met with individual Trustees.

Over time, the Garniers became frustrated with the 

Trustees’ unresponsiveness in these encounters. Starting 

sometime in 2015, the Garniers began commenting on the 

Trustees’ social media posts. The Garniers’ social media 

comments did not use profanity or threaten physical harm, 

and almost all of their comments related to PUSD. But the 

Garniers’ comments were often quite lengthy and were 

frequently repetitive of other comments they had posted on 

the Trustees’ social media communications. For instance, 

Christopher Garnier posted nearly identical comments on 

42 separate posts O’Connor-Ratcliff made to her Facebook 

page. On one occasion, within approximately ten minutes 

Christopher Garnier posted 226 identical replies to 

O’Connor-Ratcliff’s Twitter page, one to each Tweet 

O’Connor-Ratcliff had ever written on her public account. 

Although there was some variation in their comments, the 

Garniers’ complaints primarily concerned alleged 

wrongdoing by Superintendent John Collins and race 

relations at PUSD.

Frustrated with the repetitive nature of the Garniers’ 

comments, the Trustees began deleting or hiding the 

comments from their Facebook pages. Later, tired of 

monitoring and deleting or hiding the Garniers’ comments 

individually, the Trustees took more decisive action: 

Around October 2017, O’Connor-Ratcliff blocked both the 

Garniers from her Facebook page and blocked Christopher 

officials and the Garniers filed a series of legal actions against each 

another.
12 GARNIER V. O’CONNOR-RATCLIFF

Garnier from her Twitter page. Zane likewise blocked the 

Garniers from his Facebook page.5

Sometime after they blocked the Garniers, the Trustees 

began using Facebook’s “word filter” feature effectively to 

preclude all verbal comments on their public pages. 

Specifically, in December 2018, Zane added a list of 

approximately 2,000 commonly used English words to his 

Facebook word filter, so that any comment using one of 

those words could not be posted. O’Connor-Ratcliff added 

a smaller list of about 20 commonly used words to her own 

filter.6 The Trustees’ use of word filters as a practical matter 

eliminated all new verbal comments from the Facebook 

posts, but did not affect viewers’ abilities to register nonverbal reactions, such as “liking” their posts with a thumbsup symbol or selecting another one of Facebook’s reaction 

buttons. Because they were blocked, the Garniers were 

unable to leave these nonverbal reactions on the Trustees’ 

Facebook pages.

5 At trial, Zane maintained that he never blocked the Garniers from 

his public Facebook page, only from his personal pages. Screenshots of 

Christopher Garnier’s view of Zane’s page show, however, that the 

comment box and the emoticon reaction features, which appear 

underneath posts when a user is not blocked, were disabled. Although 

Kimberly Garnier was blocked from Zane’s public Facebook page at the 

time that the Garniers filed this lawsuit, the district court found that Zane 

had unblocked her shortly before trial.

6 It is not clear exactly when O’Connor-Ratcliff began using word 

filters on her Facebook page. She testified that she believed she began 

using word filters sometime in 2017, although she was not certain. 

Screenshots of her Facebook page in the record show that the public 

could still leave comments on her page as of September 2017.
GARNIER V. O’CONNOR-RATCLIFF 13

B. Procedural History

After the Trustees blocked the Garniers from their social 

media pages, the Garniers filed suit against the Trustees 

under 42 U.S.C. § 1983, seeking damages and declaratory 

and injunctive relief. As relevant here, the Garniers alleged 

that the Trustees’ social media pages constitute public fora 

and that, by blocking them, the Trustees violated the 

Garniers’ First Amendment rights.

After discovery, the Trustees moved for summary 

judgment. The district court granted the Trustees qualified 

immunity as to the Garniers’ damages claims but otherwise 

permitted the case to proceed. On the merits, the district 

court concluded that O’Connor-Ratcliff and Zane acted 

under color of state law for purposes of 42 U.S.C. § 1983 

when they banned the Garniers from their social media 

pages, noting that the Trustees’ “posts were linked to events 

which arose out of their official status as PUSD Board 

members,” that the content of their posts “went beyond their 

policy preferences or information about their campaigns for 

reelection,” and that “the content of many of their posts was 

possible because they were ‘clothed with the authority of 

state law.’” The district court next concluded that the 

comment portions of the Trustees’ public social media pages 

were designated public fora and that a trial was necessary to 

determine disputed issues of fact as to whether the Trustees’ 

blocking of the Garniers was a reasonable, content-neutral 

restriction on repetitive comments.

The case proceeded to a two-day bench trial. Both the 

Garniers and the Trustees testified. After trial, the district 

court issued findings of fact and conclusions of law and 

awarded declaratory and injunctive relief to the Garniers. 

The district court concluded that although Zane had 

unblocked Kimberly Garnier on Facebook a few days before 
14 GARNIER V. O’CONNOR-RATCLIFF

trial, her claims against Zane were not moot because it was 

“not absolutely clear that Zane could not block Kimberly 

Garnier again.” The district court next determined that the 

Trustees’ decision to block the Garniers was content neutral 

and intended “to enforce an unwritten rule of decorum 

prohibiting repetitious speech on their social media pages.” 

The district court nevertheless granted judgment to the 

Garniers because blocking them indefinitely was not 

narrowly tailored to the avoidance of repetitive comments on 

the Trustees’ pages. The district court also taxed costs in 

favor of the Garniers and denied without prejudice the 

Trustees’ motion to re-tax costs, noting that they could refile their motion after appeal.

The Trustees appealed, challenging both the district 

court’s judgment and the decision to award costs to the 

Garniers. The Garniers cross-appealed, arguing that the 

district court erred by granting qualified immunity to the 

Trustees as to the Garniers’ damages claims.

II. DISCUSSION

On appeal, the Trustees contend that they closed any

public fora they may have created on their social media 

pages by blocking almost all comments on their posts 

through the use of word filters, mooting the dispute; that 

creating, maintaining, and blocking the Garniers from their 

social media accounts did not constitute state action under 

§ 1983; and that, in any event, blocking them indefinitely is 

a narrowly tailored time, place, or manner restriction. We 

reject these arguments and affirm.

A. Mootness

We first address the Trustees’ contention that this case is 

moot.
GARNIER V. O’CONNOR-RATCLIFF 15

As described, sometime after the Garniers filed their 

lawsuit, the Trustees began using the word filter function on 

Facebook to prevent any new comments from being posted 

on their Facebook pages. The Trustees assert that, by 

implementing word filters, they effectively closed their 

Facebook pages as designated public fora, and that the 

Garniers therefore “do not have standing” to challenge the 

decision to block them. Although the Trustees’ use of word 

filters on Facebook is relevant in some respects to the First 

Amendment analysis of the Garniers’ claims, see infra

Section II.C., we disagree with the Trustees that the use of 

word filters on Facebook moots this case.

First, in addition to blocking the Garniers on Facebook, 

O’Connor-Ratcliff also blocked Christopher Garnier from 

viewing her Twitter page or replying to her Tweets. The 

Trustees testified at trial only that they used word filters on 

Facebook. There is no evidence in the record that 

O’Connor-Ratcliff similarly could or did restrict public 

comments on her Twitter page. So, whatever changes the 

Trustees may have made to their Facebook pages, such 

changes would not affect Christopher Garnier’s claim 

against O’Connor-Ratcliff for blocking him from her Twitter 

page.

Second, although word filters have limited the public’s 

ability to write verbal comments in response to the Trustees’ 

posts, the word filters have not changed Facebook’s nonverbal “reaction” feature, which allows users to offer an 

emotional reaction emoticon to Facebook posts, such as a 

“like,” “angry face,” or “sad face” emoticon. Individuals 

who have been blocked from a Facebook page, such as the 

Garniers, cannot provide this non-verbal feedback. 

Regaining the ability to provide non-verbal feedback to the 

Trustees’ posts would constitute effective relief, 
16 GARNIER V. O’CONNOR-RATCLIFF

notwithstanding the Trustees’ adoption of word filters. See

McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015) 

(quoting Siskiyou Reg’l Educ. Project v. U.S. Forest Serv., 

565 F.3d 545, 559 (9th Cir. 2009)). The Garniers’ case 

therefore retains “its character as a present, live 

controversy.” Id. (quoting Siskiyou, 565 F.3d at 559).

Last, and independently dispositive, the voluntary nature 

of the Trustees’ use of word filters means the dispute here is 

not moot with respect to the Facebook pages or with respect 

to the blocking of verbal comments, as voluntary cessation 

of allegedly unlawful activity ordinarily does not moot a 

case. “Otherwise, a defendant could engage in unlawful 

conduct, stop when sued to have the case declared moot, then 

pick up where he left off, repeating this cycle until he 

achieves all his unlawful ends.” Already, LLC v. Nike, Inc., 

568 U.S. 85, 91 (2013). Accordingly, the party asserting 

mootness following the voluntary cessation of allegedly 

illegal conduct bears the “‘heavy burden’ of making 

‘absolutely clear’ that it could not revert” to its prior 

behavior. Fikre v. FBI, 904 F.3d 1033, 1038 (9th Cir. 2018) 

(quoting Trinity Lutheran Church of Columbia, Inc. v. 

Comer, 137 S. Ct. 2012, 2019 n.1 (2017)).

The Trustees have not carried that burden. They have 

provided no assurance that they will not, in the future, 

remove the word filters from their Facebook pages and again 

open those pages for verbal comments from the public. To 

the contrary, at trial, O’Connor-Ratcliff contemplated the 

possibility that she might one day change her Facebook page 

to again “have some back and forth with my constituents.” 

And although the Trustees have, for now, effectively 

precluded any new comments on their Facebook pages, they 

remain “practically and legally ‘free to return to [their] old 

ways’ despite abandoning them in the ongoing litigation.” 
GARNIER V. O’CONNOR-RATCLIFF 17

Id. at 1039 (quoting United States v. W.T. Grant Co., 345 

U.S. 629, 632 (1953)).7 We therefore have jurisdiction to 

consider the legality of the Trustees’ decision to block the 

Garniers on Facebook both before and after the Trustees 

began using word filters.

B. State Action

“To state a claim under § 1983, a plaintiff must allege 

the violation of” a federal right “committed by a person 

acting under color of state law.” West v. Atkins, 487 U.S. 42, 

48 (1988). Whether a government actor “is acting under 

color of law is not always an easy call, especially when the 

conduct is novel,” and “there is no rigid formula for 

measuring state action for purposes of section 1983 

liability.” Gritchen v. Collier, 254 F.3d 807, 813 (9th Cir. 

2001) (quoting McDade v. West, 223 F.3d 1135, 1139 (9th 

Cir. 2000)).8 Rather, determining whether a public official’s 

conduct constitutes state action “is a process of ‘sifting facts 

and weighing circumstances.’” Id. (quoting McDade, 223 

F.3d at 1139). “[N]o one fact can function as a necessary 

condition across the board.” Rawson v. Recovery 

Innovations, Inc., 975 F.3d 742, 751 (9th Cir. 2020) (quoting 

7 For similar reasons, Zane’s decision to unblock Kimberly Garnier 

from his Facebook page on the eve of trial does not moot her claim 

against him. Zane has put in place no “procedural safeguards” to ensure 

that he will not again block Kimberly Garnier from his Facebook page. 

See Fikre, 904 F.3d at 1039 (citations omitted). His decision, without 

explanation, to unblock Kimberly Garnier just days before trial is not the 

kind of “unambiguous renunciation of [his] past actions” that “can 

compensate for the ease with which [he] may relapse into them.” Id.

8 Because the ‘“color of law’ requirement of § 1983 is treated as the 

equivalent of the ‘state action’ requirement under the Constitution,” 

Jensen v. Lane County, 222 F.3d 570, 574 (9th Cir. 2000), we use those 

phrases interchangeably in this opinion.
18 GARNIER V. O’CONNOR-RATCLIFF

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 

531 U.S. 288, 295 (2001)), cert. denied, 142 S. Ct. 69 

(2021). “At bottom, the inquiry is always whether the 

defendant has exercised power possessed by virtue of state 

law and made possible only because the wrongdoer is 

clothed with the authority of state law.” Id. at 748 (internal 

quotation marks omitted) (quoting West, 487 U.S. at 49). 

Although “[w]hat is fairly attributable” to the state “is a 

matter of normative judgment, and the criteria lack rigid 

simplicity,” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 

2003) (quoting Brentwood, 531 U.S. at 295), we have 

recognized “at least four different criteria, or tests, used to 

identify state action,” the satisfaction of any one of which “is 

sufficient to find state action, so long as no countervailing 

factor exists,” id. Those tests include: the “public function 

test,” applicable when private individuals are “endowed by 

the State with powers or functions” that are “both 

traditionally and exclusively governmental” and therefore 

“become agencies or instrumentalities of the State,” id. at 

1093 (quoting Lee v. Katz, 276 F.3d 550, 554–55 (9th Cir. 

2002)); the “joint action test,” applicable when “the state has 

so far insinuated itself into a position of interdependence 

with the private entity that it must be recognized as a joint 

participant in the challenged activity,” id. (quoting Parks 

Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 

1995)); the “compulsion test,” applicable when “the coercive 

influence or ‘significant encouragement’ of the state 

effectively converts a private action into a government 

action,” id. at 1094 (quoting Sutton v. Providence St. Joseph 

Med. Ctr., 192 F.3d 826, 842 (9th Cir. 1999)); and the 

“nexus test,” applicable when there is “such a close nexus 

between the State and the challenged action that the 

seemingly private behavior may be fairly treated as that of 

the State itself,” id. at 1094–95 (quoting Brentwood, 531 
GARNIER V. O’CONNOR-RATCLIFF 19

U.S. at 295). The fourth category most closely fits the facts 

of this case. Whichever test applies, “the central question 

remains whether ‘the alleged infringement of federal rights 

[is] fairly attributable to the government.’” Id. at 1096 

(alteration in original) (quoting Sutton, 192 F.3d at 835).

1. State Action Nexus Analysis

We have never addressed whether a public official acts 

under color of state law by blocking a constituent from a 

social media page. Doing so now, we conclude that, given 

the close nexus between the Trustees’ use of their social 

media pages and their official positions, the Trustees in this 

case were acting under color of state law when they blocked 

the Garniers.

The Trustees’ use of their social media accounts was 

directly connected to, although not required by, their official

positions. “The purpose of § 1983 is to deter state actors 

from using the badge of their authority to deprive individuals 

of their federally guaranteed rights.” McDade, 223 F.3d 

at 1139. That is why “seemingly private behavior may be 

fairly treated as that of the State” if there is “a close nexus 

between the State and the challenged action.” Kirtley, 326 

F.3d at 1094–95 (quoting Brentwood, 531 U.S. at 295). 

Viewed in this light, the line of precedent most similar to 

this case concerns whether off-duty governmental 

employees are acting under color of state law. As here, the 

focus in such cases is on whether the public official’s 

conduct, even if “seemingly private,” is sufficiently related 

to the performance of his or her official duties to create “a 

close nexus between the State and the challenged action,” or 

whether the public official is instead “pursu[ing] private 

goals via private actions.” Naffe v. Frey, 789 F.3d 1030, 
20 GARNIER V. O’CONNOR-RATCLIFF

1037–38 (9th Cir. 2015) (quoting Brentwood, 531 U.S. at 

295).

Synthesizing such cases, Naffe explained that, when a 

“state employee is off duty, whether he or she ‘is acting 

under color of state law turns on the nature and 

circumstances of the’” employee’s conduct “and the 

relationship of that conduct to the performance of his official 

duties.” Id. at 1036 (quoting Anderson v. Warner, 451 F.3d 

1063, 1068 (9th Cir. 2006)). Specifically, Naffe held that a 

“state employee who is off duty nevertheless acts under 

color of state law when (1) the employee ‘purport[s] to or 

pretend[s] to act under color of law,’ (2) his ‘pretense of 

acting in the performance of his duties . . . had the purpose 

and effect of influencing the behavior of others,’ and (3) the 

harm inflicted on plaintiff ‘related in some meaningful way 

either to the officer’s governmental status or to the 

performance of his duties.’” Id. at 1037 (alterations in 

original) (first quoting Van Ort v. Estate of Stanewich, 92 

F.3d 831, 838 (9th Cir. 1996); then quoting Anderson, 451 

F.3d at 1069; and then quoting Martinez v. Colon, 54 F.3d 

980, 987 (1st Cir. 1995)).

For example, an off-duty jail officer acted under color of 

state law while assaulting someone when he “prevented 

bystanders from intervening in his attack by claiming that he 

was ‘a cop.’” Id. at 1037 (quoting Anderson, 451 F.3d 

at 1065–66). By asserting that his actions were “police 

business,” the officer invoked “his law enforcement status,” 

thereby creating a sufficiently “close nexus between his 

work at the jail” and the assault to constitute state action. Id.

(quoting Anderson, 451 F.3d at 1066). In contrast, an offduty officer did not act under color of state law while 

attempting to rob someone when, at the time of the robbery, 

he “was attired not in a uniform but in blue jeans,” “wore a 
GARNIER V. O’CONNOR-RATCLIFF 21

mask, sunglasses and cap in an attempt to conceal his 

identity,” “did not display a badge,” and “denied being a 

police officer.” Stanewich, 92 F.3d at 833–34, 838. Under 

those circumstances, the nexus between the officer’s actions 

and his official duties was insufficient because “[a]t no point 

did [he] purport to be acting as a policeman.” Id. at 839. 

What matters, in other words, is whether the state official 

“abused her responsibilities and purported or pretended to be 

a state officer” at the time of the alleged constitutional 

violation. Naffe, 789 F.3d at 1036 (quoting McDade, 

223 F.3d at 1141).

Applying Naffe’s framework here, O’Connor-Ratcliff’s 

and Zane’s use of their social media pages qualifies as state 

action under § 1983.

First, the Trustees “purport[ed] . . . to act in the 

performance of [their] official duties” through the use of 

their social media pages. Anderson, 451 F.3d at 1069 

(quoting McDade, 223 F.3d at 1140). The Trustees 

identified themselves on their Facebook pages as 

“government official[s],” listed their official titles in 

prominent places on both their Facebook and Twitter pages, 

and, in O’Connor-Ratcliff’s case, included her official 

PUSD email address in the page’s contact information. 

Zane, for his part, wrote that his Facebook page was “the 

official page for T.J. Zane, Poway Unified School District 

Board Member, to promote public and political 

information.”

Consistent with the Trustees’ official identifications on 

their social media pages, the content of the Trustees’ pages 

was overwhelmingly geared toward “provid[ing] 

information to the public about” the PUSD Board’s “official 

activities and solicit[ing] input from the public on policy 

issues” relevant to Board decisions. Davison v. Randall 
22 GARNIER V. O’CONNOR-RATCLIFF

(Davison II), 912 F.3d 666, 680 (4th Cir. 2019). O’ConnorRatcliff and Zane regularly posted about school board 

meetings, surveys related to school district policy decisions, 

the superintendent hiring process, budget planning, and 

public safety issues. So, both through appearance and 

content, the Trustees held their social media pages out to be 

official channels of communication with the public about the 

work of the PUSD Board.

Second, the Trustees’ presentation of their social media 

pages as official outlets facilitating their performance of 

their PUSD Board responsibilities “had the purpose and 

effect of influencing the behavior of others.” Naffe, 789 F.3d 

at 1037 (quoting Anderson, 451 F.3d at 1069). Zane’s 

Facebook page, as of 2017, had nearly 600 followers, and 

O’Connor-Ratcliff’s had nearly 300. Both Trustees actively 

solicited constituent input about official PUSD matters, 

including encouraging constituents to mark their calendars 

for upcoming Board meetings, to fill out surveys relating to 

Board decision-making, and to apply for volunteer 

committees run by the Board. And both Trustees sought 

feedback from constituents, and responded to their 

comments. It was by “invoking” their “‘governmental 

status’ to influence the behavior of those around” them that 

the Trustees were able to muster this kind of public 

engagement with their social media pages. Anderson, 451 

F.3d at 1069.

Finally, the Trustees’ management of their social media 

pages “related in some meaningful way” to their 

“governmental status” and “to the performance of [their] 

duties.” Naffe, 789 F.3d at 1037 (quoting Anderson, 451 

F.3d at 1069). The Trustees used their social media pages to 

communicate about, among other things, the selection of a 

new superintendent, the formulation of PUSD’s LCAP plan, 
GARNIER V. O’CONNOR-RATCLIFF 23

the composition of PUSD’s Budget Advisory Committee, 

the dates of PUSD Board meetings, and the issues discussed 

at those meetings. Those posts related directly to the 

Trustees’ duties. More generally, the Trustees’ use of social 

media to keep the public apprised of goings-on at PUSD 

accords with the Board’s power to “[i]nform and make 

known to the citizens of the district, the educational 

programs and activities of the schools therein.” Cal. Educ. 

Code § 35172(c).9

Moreover, “the specific actions giving rise to” the 

Garniers’ claim—the Trustees’ blocking of the Garniers 

from their social media pages—were “linked to events which 

arose out of [the Trustees’] official status.” Davison II, 912 

F.3d at 681 (quoting Rossignol v. Voorhaar, 316 F.3d 516, 

524 (4th Cir. 2003)). Although the Garniers’ repetitive 

comments often were not directly responsive to any 

particular post by the Trustees, their comments 

predominantly dealt with issues related to the PUSD Board’s 

governance of the District, particularly concerns about race 

relations in the District and racial disparities in suspension 

rates between white and black PUSD students, as well as 

allegations of financial wrongdoing by then-PUSD 

Superintendent John Collins. And the Trustees’ stated 

reasons for blocking the Garniers, discussed in more detail 

below, were that the Garniers’ comments, in their view, 

tended to “fill up the page,” and detract from the messages 

they wished to communicate in their posts, many of which 

9 See also Role of the Board, BB 9000(a), Poway Unified Sch. Dist. 

(adopted Aug. 9, 2018), https://www.powayusd.com/PUSD/media/

Board-Images/BoardPolicy/9000/BB-9000-Role-of-the-Board.pdf 

(requiring the Board to “ensure that the district is responsive to the 

values, beliefs, and priorities of the community” and to set “the direction 

for the district through a process that involves the community, 

parents/guardians, students, and staff”).
24 GARNIER V. O’CONNOR-RATCLIFF

pertained to “the performance of [their] official duties.” 

Naffe, 789 F.3d at 1036 (quoting Anderson, 451 F.3d at 

1069). In other words, because the Trustees presented and 

administered their social media pages as official organs for 

carrying out their PUSD Board duties, the Trustees’ decision 

to block the Garniers for allegedly interfering with that use

of the social media pages “related in some meaningful way 

either to the [Trustees’] governmental status or to the 

performance of [their] duties.” Id. at 1037 (quoting 

Anderson, 451 F.3d at 1069).

Even though they clothed their pages in the authority of 

their offices and used their pages to communicate about their 

official duties, the Trustees contend that their use of social 

media did not constitute state action because the pages, they 

maintain, were personal campaign pages designed only to 

advance their own political careers, and because PUSD 

provided no financial support or authorization for the pages. 

Many of the Trustees’ posts did concern workaday visits to 

schools and the achievements of PUSD’s students and 

teachers, material that could promote the Trustees’ personal 

campaign prospects. But the Trustees’ posts about PUSD 

school activities generally do not read as advertising 

“campaign promises” kept or touting their own political 

achievements. After their election in 2014, the Trustees 

virtually never posted overtly political or self-promotional 

material on their social media pages. Rather, their posts 

either concerned official District business or promoted the 

District generally. 

As to the lack of PUSD funding or authorization, the 

Trustees’ pages did not contain any disclaimer that the 

“statements made on this web site reflect the personal 

opinions of the author” and “are not made in any official 

capacity.” Naffe, 789 F.3d at 1033. To the contrary, both in 
GARNIER V. O’CONNOR-RATCLIFF 25

the appearance and the content of the pages, the Trustees 

effectively “display[ed] a badge” to the public signifying 

that their accounts reflected their official roles as PUSD 

Trustees, whether or not the District had in fact authorized 

or supported them. Id. at 1036 (quoting Stanewich, 92 F.3d 

at 838).

The Trustees also contend that their use of social media 

cannot constitute state action because a legislator “may only 

act at a properly convened meeting of the legislative body 

and may only offer a matter for consideration or vote on a 

matter.” This argument is unconvincing. 

For one thing, the duties of elected representatives 

extend beyond “participating in debates and voting.” 

Williams v. United States, 71 F.3d 502, 507 (5th Cir. 1995); 

accord Does 1–10 v. Haaland, 973 F.3d 591, 600–02 (6th 

Cir. 2020); Council on Am. Islamic Rels. v. Ballenger, 444 

F.3d 659, 665 (D.C. Cir. 2006). In addition to those duties, 

“a primary obligation” of legislators “in a representative 

democracy is to serve and respond to [their] constituents.” 

Ballenger, 444 F.3d at 665 (quoting Williams, 71 F.3d at 

507). Likewise, in defining the contours of legislative 

immunity, we have recognized that “not all governmental 

acts by a local legislator . . . are necessarily legislative in 

nature,” and that conduct of an “administrative or executive” 

nature, even if outside a legislator’s core duties, may be 

actionable under § 1983. Trevino ex rel. Cruz v. Gates, 23 

F.3d 1480, 1482 (9th Cir. 1994) (quoting Cinevision Corp. 

v. City of Burbank, 745 F.2d 560, 580 (9th Cir. 1984)).

In any event, the core of our state action inquiry is 

whether the defendant’s conduct is “fairly attributable to the 

State,” Filarsky v. Delia, 566 U.S. 377, 383 (2012) (quoting 

Lugar v. Edmondson Oil Co., 457 U.S. 922, 923 (1982))—

that is, whether there is “such a close nexus between the 
26 GARNIER V. O’CONNOR-RATCLIFF

State and the challenged action that the seemingly private 

behavior may be fairly treated as that of the State itself,”

Kirtley, 326 F.3d at 1095 (quoting Brentwood, 531 U.S. at 

295). By representing themselves to be acting in their 

official capacities on their social media and posting about 

matters that directly related to their official PUSD Board 

duties, the Trustees “exercised power possessed by virtue of 

state law and made possible only because” they were 

“clothed with the authority of state law.” Rawson, 975 F.3d 

at 748 (internal quotation marks omitted) (quoting West, 

487 U.S. at 49). 

Given all these attributes of the Trustees’ social media 

pages, we hold that the Trustees’ maintenance of their social 

media pages, including the decision to block the Garniers 

from those pages, constitutes state action under § 1983.

Although the Trustees acted under color of state law in 

this case, we reiterate that finding state action “is a process 

of ‘sifting facts and weighing circumstances.’” Gritchen, 

254 F.3d at 813 (quoting McDade, 223 F.3d at 1139). Given 

the fact-sensitive nature of state action analyses, “not every 

social media account operated by a public official is a 

government account.” Knight First Amend. Inst. at Colum. 

Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019), cert. 

granted, judgment vacated as moot sub nom. Biden v. Knight 

First Amend. Inst. at Colum. Univ., 141 S. Ct. 1220 (2021). 

Rather, courts should look to considerations such as “how 

the official describes and uses the account,” “to whom 

features of the account are made available,” and how 

members of the public and government officials “regard and 

treat the account.” Id. In this case, the pertinent factors all 

indicate that O’Connor-Ratcliff and Zane unequivocally 

“cloaked” their social media accounts “with the authority of 

the state.” Howerton v. Gabica, 708 F.2d 380, 384–85 (9th 
GARNIER V. O’CONNOR-RATCLIFF 27

Cir. 1983). We hold that the Trustees acted under color of 

state law when they blocked the Garniers from their social 

media accounts.

2. Decisions of Other Circuits

In recent years, the Second, Fourth, Sixth, and Eighth 

Circuits have each addressed claims regarding the blocking 

of access to government officials’ social media pages. Three 

of those courts’ applications of the state action doctrine in 

those similar cases are consistent with the approach we take 

here. 

In Davison II, 912 F.3d 666, the Fourth Circuit held that 

the Chair of the Loudoun County, Virginia, Board of 

Supervisors acted under color of state law and violated the 

First Amendment when she banned a constituent from the 

“Chair Phyllis J. Randall” Facebook page she created the day 

before she took office, id. at 672–73. Like the posts to the 

Trustees’ pages here, Randall’s posts to her “governmental 

official” Facebook page dealt “with numerous aspects of 

Randall’s official responsibilities,” including posting “to 

notify the public about upcoming Loudoun Board meetings, 

and the subjects to be discussed during those meetings,” “to 

inform Loudoun County residents about significant public 

safety issues,” and “to communicate with constituents 

regarding which municipal streets required plowing” 

following a large snowstorm. Id. at 673–74. Additionally, 

like the Trustees here, Randall used her page to invite 

members of the public to participate in certain constituent 

commissions and “to advise the public regarding official 

actions taken by the Loudoun Board.” Id. at 674. Davison 

II also noted that Randall identified herself as a “government 

official” on the page and listed her official county email 

address in the page’s contact info. Id.
28 GARNIER V. O’CONNOR-RATCLIFF

Citing, as we have, cases involving the conduct of offduty state officers, the court concluded that Randall’s 

“purportedly private actions” bore a “sufficiently close 

nexus” with the Board of Supervisors “to satisfy Section 

1983’s color-of-law requirement.” Id. at 680 (quoting 

Rossignol, 316 F.3d at 524). Randall’s actions, Davison II 

emphasized, were “linked to events which arose out of [her] 

official status.” Id. (quoting Rossignol, 316 F.3d at 524). In 

particular, Davison II stressed that Randall “used the Chair’s 

Facebook Page ‘as a tool of governance’” by providing 

information to the public about the Board’s official 

activities, soliciting input from constituents on policy issues, 

and keeping the public informed about public safety issues. 

Id. (quoting Davison v. Loudoun Cnty. Bd. of Supervisors 

(Davison I), 267 F. Supp. 3d 702, 713 (E.D. Va. 2017)). 

Additionally, by listing her title and official contact 

information and categorizing the page as that of a 

“government official,” Randall “swathe[d] the” page “in the 

trappings of her office.” Id. at 680–81 (quoting Davison I, 

267 F. Supp. 3d at 714). The Fourth Circuit concluded that 

because Randall “clothed the Chair’s Facebook Page in ‘the 

power and prestige of h[er] state office” and administered 

the page to “perform[] actual or apparent dut[ies] of h[er] 

office,” a “private citizen could not have created and used” 

the page in the same manner that she did. Id. at 681 

(alterations in original) (first quoting Harris v. Harvey, 605 

F.2d 330, 337 (7th Cir. 1979); and then quoting Martinez, 54 

F.3d at 986).

The Second Circuit conducted a similar analysis in 

Knight, 928 F.3d 226.10 Knight held that the President acted 

10 Although the Supreme Court vacated Knight as moot after 

President Donald Trump left office, the opinion nonetheless has 

persuasive value. See Spears v. Stewart, 283 F.3d 992, 1017 n.16 (9th 
GARNIER V. O’CONNOR-RATCLIFF 29

in a governmental capacity when he blocked followers of his 

Twitter account because they posted Tweets critical of him 

and his policies. 928 F.3d at 234–36. The court first stressed 

the “substantial and pervasive government involvement 

with, and control over,” the President’s Twitter account. Id. 

at 235. Knight emphasized that the account was “presented 

by the President” as “belonging to, and operated by, the 

President” and was registered to “Donald J. Trump, ‘45th 

President of the United States of America, Washington, 

D.C.’” Id. The President’s Tweets were also “official 

records that must be preserved under the Presidential 

Records Act.” Id.

Knight further explained that the President had used his 

Twitter account “as a channel for communicating and 

interacting with the public about his administration,” 

including to announce “matters related to official 

government business,” “to engage with foreign leaders,” and 

“to announce foreign policy decisions and initiatives.” Id. at 

235–36. The account’s “like,” “retweet,” and “reply” 

functions also helped the President “to understand and to 

evaluate the public’s reaction to what he says and does.” Id. 

at 236.

Altogether, the court determined, these facts established 

that the account was “an important tool of governance and 

executive outreach,” and therefore that the evidence of “the 

public, non-private nature of the Account” was 

“overwhelming.” Id. The court acknowledged, as we have, 

that “not every social media account operated by a public 

official is a government account,” and instructed that courts 

should look to “how the official describes and uses the 

Cir. 2002) (en banc); DCD Programs, Ltd. v. Leighton, 90 F.3d 1442, 

1448 n.9 (9th Cir. 1996).
30 GARNIER V. O’CONNOR-RATCLIFF

account,” “to whom features of the account are made 

available,” and “how others . . . regard and treat the 

account.” Id.

In contrast to Davison II and Knight, the Eighth Circuit 

in Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021), 

concluded that Missouri state representative Cheri Toalson 

Reisch was not acting under color of state law when she 

blocked a constituent from her Twitter account, id. at 823. 

The court reasoned that Reisch created her Twitter account 

“when she announced her candidacy for state representative” 

and that, after taking office, Reisch continued to run the 

Twitter account “in a private capacity, namely, as a 

campaigner for political office” rather than as a public 

official. Id. at 823–25.

In support of its conclusion, the court cited, for instance, 

one Tweet in which Reisch stated she was “proud to deliver 

results during the first half of session” and another in which 

she asserted she was “making good on” a promise “to 

improve our #economy.” Id. at 824. In contrast to the 

account in Davison II, the Eighth Circuit concluded, the 

“overall theme of Reisch’s tweets—that[] she’s the right 

person for the job—largely remained the same after her 

electoral victory” and focused on touting “her success in 

fulfilling” promises made on the campaign trail. Id. at 826. 

Although Reisch “occasionally used the account to provide 

updates on where certain bills were in the legislative process 

or the effect certain recently enacted laws had had on the 

state,” those Tweets were “fully consistent with Reisch using 

the account to tout her record.” Id. 

Campbell acknowledged that “Reisch’s official duties as 

a representative extend beyond voting or participating in 

committee meetings and include things like communicating 

with constituents about legislation.” Id. at 827. And the 
GARNIER V. O’CONNOR-RATCLIFF 31

court recognized that a “private account can turn into a 

governmental one if it becomes an organ of official 

business.” Id. at 826. But the majority in Campbell 

ultimately concluded “that is not what happened here.” Id. 

Reisch’s “sporadic engagement in” communication about 

legislation did “not overshadow” her otherwise clear “effort 

to emphasize her suitability for public office.” Id. at 827. 

Unlike the Facebook page in Davison II, Reisch’s page 

contained only “occasional stray messages that might 

conceivably be characterized as conducting the public’s 

business.” Id. “In short,” Campbell concluded Reisch’s 

Twitter account was “more akin to a campaign newsletter 

than to anything else,” and so Reisch retained the 

“prerogative to select her audience and present her page as 

she sees fit.” Id.

Although the results in Davison II and Knight, on the one 

hand, and Campbell, on the other, were different, Campbell

expressly applied the approach adopted in Davison II and 

Knight, so the mode of analysis in these cases was generally 

consistent.11 Applying that approach, we conclude that the 

Trustees’ administration of their social media accounts in 

this case much more closely resembles the use of the 

accounts in Davison II and Knight than the use of the account 

in Campbell, as recounted by the majority opinion.

11 We note that Judge Kelly’s dissent in Campbell makes a strong 

case that, applying Davison II and Knight to the facts of Campbell, the 

conclusion should have been that Reich’s blockage of Campbell from 

her Twitter page was state action. Campbell, 986 F.3d at 828–29 (Kelly, 

J., dissenting). For present purposes, however, the pertinence of 

Campbell is that its general approach is in accord with ours and with that 

in Davison II and Knight, not whether it was correctly decided on its 

facts.
32 GARNIER V. O’CONNOR-RATCLIFF

First, as in Davison II and Knight, the Trustees presented 

their social media pages as belonging to “government 

officials.” O’Connor-Ratcliff listed her official PUSD 

contact information on her Facebook page and identified 

herself as “President” of the Poway Unified School District 

Board of Education on her Twitter page. Zane similarly 

described his Facebook page as “the official page for T.J. 

Zane, Poway Unified School District Board Member, to 

promote public and political information.” See Davison II, 

912 F.3d at 674; Knight, 928 F.3d at 235. Moreover, unlike 

the representative in Campbell, who the majority opinion in 

that case determined used her account not in service of her 

official duties but rather “as a campaigner for political 

office,” 986 F.3d at 823–25, the Trustees routinely used their 

social media “as a tool of governance,” Davison II, 912 F.3d 

at 680 (quoting Davison I, 267 F. Supp. 3d at 713). They 

posted on their social media pages “to notify the public 

about” PUSD Board meetings and the subjects “discussed 

during those meetings,” id. at 673, “to inform” parents 

“about significant public safety issues” such as fires and 

active shooters, id., to announce “policy decisions and 

initiatives” such as the selection of a new PUSD 

superintendent, Knight, 928 F.3d at 236, and “to understand 

and to evaluate the public’s reaction to what” they did in 

office, id. at 236. 

We note that the Sixth Circuit recently held in Lindke v. 

Freed that city manager James Freed was not a state actor 

when he blocked a citizen from his public Facebook page, 

adopting a somewhat different analysis from ours and that of 

the Second, Fourth, and Eighth Circuits. 37 F.4th 1199, 

1201 (6th Cir. 2022). Although the court also applied a 

nexus test for state action, it expressly “part[ed] ways” with 

the other Circuits. Id. at 1206. In doing so, the Sixth Circuit 

held inapposite state action cases involving off-duty police 
GARNIER V. O’CONNOR-RATCLIFF 33

officers, on the ground that a police officer’s appearance 

plays a unique role in the ability to invoke state authority. 

Id. Instead, the court relied on prior Sixth Circuit precedents 

that addressed similar questions by applying a “state-official 

test,” inquiring whether a public official is performing an 

actual or apparent official duty or whether the action could 

have been taken without the authority of the person’s 

position. Id. at 1202–03. Thus, “[i]nstead of examining a 

[social media] page’s appearance or purpose,” the court 

“focus[ed] on the actor’s official duties and use of 

government resources or state employees.” Id. at 1206.

We decline to follow the Sixth Circuit’s reasoning. 

Although the uniform of a police officer carries particular 

authority, our Circuit’s analysis of whether a police officer 

acts under color of law does not turn only on the person’s 

sporting of a uniform or the person’s “appearance” alone. 

Rather, we consider whether the officer self-identified as a 

state employee and generally “purported . . . to be a state 

officer” at the time of the alleged violation, an inquiry that 

considers actions in addition to appearance. Naffe, 789 F.3d

at 1036–37 (quoting McDade, 223 F.3d at 1141); see also 

Stanewich, 92 F.3d at 833 (noting the officer denied being a 

police officer and did not show a badge). We thus conclude, 

as did the Fourth Circuit in Davison II, that off-duty officer 

cases are instructive as to analysis of other state employees’ 

conduct, including in the arena of social media.

In short, we follow the mode of analysis of the Second, 

Fourth, and Eighth Circuits to hold that the Trustees used 

their social media accounts as “an organ of official 

business.” Campbell, 986 F.3d at 826. As with the 

Facebook page in Davison II, a “private citizen could not 

have created and used” the Trustees’ pages in the manner 

that they did because the Trustees “clothed” their pages in 
34 GARNIER V. O’CONNOR-RATCLIFF

“the power and prestige of” their offices “and created and 

administered” the pages “to ‘perform[] actual or apparent 

dut[ies]’” of their offices. 912 F.3d at 681 (alterations in 

original) (first quoting Harris, 605 F.2d at 337; and then 

quoting Martinez, 54 F.3d at 986). Because they so used 

their social media pages, the Trustees were state actors.

C. First Amendment Violation

As state actors, the Trustees violated the First 

Amendment when they blocked the Garniers from their 

social media pages. The interactive sections of the Trustees’ 

social media accounts constituted public fora. And even 

assuming that the Trustees blocked the Garniers only to 

enforce an unspoken, content-neutral rule against repetitive 

comments, the Trustees’ decision to block the Garniers is not 

sufficiently tailored to a significant governmental interest to 

pass First Amendment scrutiny.12

3. Forum Analysis

The “extent to which the Government may limit access” 

to a government forum “depends on whether the forum is 

public or nonpublic.” Hopper v. City of Pasco, 241 F.3d 

1067, 1074 (9th Cir. 2001) (quoting Cornelius v. NAACP 

Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985)). 

12 We review constitutional facts de novo in First Amendment cases,

conducting “an independent examination of the whole record” to ensure 

that “the judgment does not constitute a forbidden intrusion on the field 

of free expression.” Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 742 

(9th Cir. 2021) (quoting Bose Corp. v. Consumers Union of United 

States, Inc., 466 U.S. 485, 499 (1984)). We also review de novo the 

application of law to facts “on free speech issues.” Lair v. Motl, 873 

F.3d 1170, 1178 (9th Cir. 2017) (quoting Lair v. Bullock, 798 F.3d 736, 

745 (9th Cir. 2015)).
GARNIER V. O’CONNOR-RATCLIFF 35

“A designated public forum exists where ‘the government 

intentionally opens up a nontraditional forum for public 

discourse.’” Id. (quoting DiLoreto v. Downey Unified Sch. 

Dist. Bd. of Educ., 196 F.3d 958, 964 (9th Cir. 1999)). To 

determine whether the government has created a designated 

public forum, we look “to the policy and practice of the 

government to ascertain whether it intended to designate a 

place not traditionally open to assembly and debate as a 

public forum,” as well as “the nature of the property and its 

compatibility with expressive activity.” Id. at 1075 (quoting 

Cornelius, 473 U.S. at 802). In a designated public forum, 

“the government may impose reasonable restrictions on the 

time, place, or manner of protected speech, provided the 

restrictions” are “narrowly tailored to serve a significant 

governmental interest” and “leave open ample alternative 

channels for communication of the information.” Ward v. 

Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting 

Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 

(1984)).

A limited public forum, by contrast, is “a sub-category 

of a designated public forum that ‘refer[s] to a type of 

nonpublic forum that the government has intentionally 

opened to certain groups or to certain topics.’” Hopper, 241 

F.3d at 1074 (alteration in original) (quoting DiLoreto, 196 

F.3d at 965). The “[s]tandards for inclusion and exclusion” 

for a limited public forum “must be unambiguous and 

definite”; without “objective standards, government officials 

may use their discretion . . . as a pretext for censorship.” Id. 

at 1077 (quoting Christ’s Bride Ministries, Inc. v. Se. Pa. 

Transp. Auth., 148 F.3d 242, 251 (3d Cir. 1998)). In a 

limited public forum, restrictions on speech and speakers are 

permissible so long as they are “viewpoint neutral and 

reasonable in light of the purpose served by the forum.” Id.

at 1074–75 (quoting DiLoreto, 196 F.3d at 965). Put another 
36 GARNIER V. O’CONNOR-RATCLIFF

way, the restriction must be “consistent with preserving the 

property for the purpose to which it is dedicated.” DiLoreto, 

196 F.3d at 967.

Social media websites—Facebook and Twitter in 

particular—are fora inherently compatible with expressive 

activity. “While in the past there may have been difficulty 

in identifying the most important places (in a spatial sense) 

for the exchange of views, today the answer is clear. It is 

cyberspace—the ‘vast democratic forums of the Internet’ in 

general, . . . and social media in particular.” Packingham, 

137 S. Ct. at 1735 (quoting Reno v. ACLU, 521 U.S. 844, 

868 (1997)). Social media sites allow users “to gain access 

to information and communicate with one another about it 

on any subject that might come to mind” and thereby 

“provide perhaps the most powerful mechanisms available 

to a private citizen to make his or her voice heard.” Id. at 

1737.

The Trustees contend that they always intended their 

social media pages to be a “one-way” channel of 

communication. But what matters in forum analysis “is what 

the government actually does—specifically, whether it 

consistently enforces the restrictions on use of the forum that 

it adopted.” Hopper, 241 F.3d at 1075. Before the Trustees 

began using word filters, their social media pages were open 

and available to the public without any restriction on the 

form or content of comments. And far from forbidding 

comments, the Trustees occasionally solicited feedback 

from constituents through their posts and responded to 

individuals who left comments. Although the Trustees 

eventually began deleting or hiding some lengthy or 

repetitive comments, they never adopted any formal rules of 

decorum or etiquette for their pages that would be 

“sufficiently definite and objective to prevent arbitrary or 
GARNIER V. O’CONNOR-RATCLIFF 37

discriminatory enforcement.” Am. Freedom Def. Initiative 

v. King County, 904 F.3d 1126, 1130 (9th Cir. 2018). The 

Trustees’ suggestion that they had an unspoken policy 

against repetitive comments does not satisfy the requirement 

that “[s]tandards for inclusion and exclusion” “must be 

unambiguous and definite” to create a limited public forum. 

Hopper, 241 F.3d at 1077 (quoting Christ’s Bride, 148 F.3d 

at 251). Even an “abstract policy statement purporting to 

restrict access to a forum is not enough.” Id. at 1075. No 

policy statement is surely not enough.

Where, as here, the government has made a forum 

“available for use by the public” and “has no policy or 

practice of regulating the content” posted to that forum, it 

has created a designated public forum. Giebel v. Sylvester, 

244 F.3d 1182, 1188 (9th Cir. 2001). We conclude that 

O’Connor-Ratcliff’s Twitter page is a designated public 

forum, and that before the Trustees began using word filters 

to curtail comments on their Facebook posts, the interactive 

portions of the Trustees’ Facebook pages were designated 

public fora.

As recounted earlier, sometime after blocking the 

Garniers from their Facebook pages, the Trustees began 

using a Facebook feature that allows the administrators of 

public pages to create a list of words and then filter out any 

comments that use any word on that list. The Trustees assert 

that, by implementing word filters, they effectively closed 

their Facebook pages as public fora. But even with the 

addition of word filters, members of the public not blocked 

from the Trustees’ pages remain able to register non-verbal 

“reactions” to the Trustees’ posts. The Trustees therefore 

have not closed the interactive portion of their pages entirely. 

The Trustees’ use of word filters has, however, changed the 
38 GARNIER V. O’CONNOR-RATCLIFF

characteristics of the public forum that now exists on those 

pages.

That is to say, before adding word filters to their 

Facebook pages, the Trustees had “no policy or practice of 

regulating the content” posted to the fora. Id. They have 

since restricted public interaction with their Facebook pages 

to the use of Facebook’s non-verbal reaction icons. In so 

doing, the Trustees now “exercise the clear and consistent 

control” over the interactive portions of their Facebook 

pages “that our cases require to maintain a limited public 

forum.” Hopper, 241 F.3d at 1080.13

In sum, the Trustees’ Facebook pages, before the 

implementation of word filters on Facebook, constituted 

designated public fora, and O’Connor-Ratcliff’s Twitter 

page remains a designated public forum. With the addition 

of word filters that prohibit comments and restrict users to 

non-verbal reactions, the Trustees’ Facebook pages are 

limited public fora.

4. Governmental Interest and Tailoring

Having determined the types of public fora at issue, we 

now analyze whether the Trustees’ decisions to block the 

Garniers from their social media pages violated the First 

Amendment. They did. 

13 The Garniers do not contend, and the record here does not suggest, 

that the Trustees began using word filters for viewpoint discriminatory 

reasons or that the word filters themselves block comments based on 

their content or viewpoint. We therefore do not address how our analysis 

might be different if the Trustees’ use of word filters was designed to 

block only critical comments or only comments concerning particular 

subjects.
GARNIER V. O’CONNOR-RATCLIFF 39

We note at the outset that it is a close question whether 

the Trustees’ decisions to block the Garniers were viewpoint 

discriminatory. Whether in a designated public forum or a 

limited public forum, “restrictions based on viewpoint are 

prohibited.” Pleasant Grove City v. Summum, 555 U.S. 460, 

469 (2009). The Trustees maintain that they blocked the 

Garniers because of the repetitive nature of their comments, 

not because of their often-critical opinions of the Trustees. 

Specifically, the Trustees testified that they blocked the 

Garniers because the Garniers were “spamming [them] 

repetitively,” and the repetitive nature of their comments 

tended to “fill up the page.”

There are reasons to doubt that explanation. For one, 

even lengthy comments on Facebook and replies on Twitter 

do not significantly detract from or overwhelm the original 

post. Facebook automatically truncates lengthy posts. On 

Twitter, replies to a user’s Tweets are not visible from the 

user’s home page. So the Trustees’ contention that the 

Garniers’ comments “fill[ed] up the page” and detracted 

from the “streamlined, bulletin board nature” of their 

accounts is inconsistent with the technological reality. What 

is more, the record shows that the Trustees hid or deleted 

negative comments from the Garniers that were not 

repetitive but did not similarly hide or delete positive 

comments from other people. And to the extent the Trustees 

maintain that they intended to keep their pages as a 

“streamlined,” one-way channel of communication, their 

replies to constituents’ comments undermines that assertion. 

In the end, we need not resolve whether the Trustees’ 

decision to block the Garniers was viewpoint discriminatory. 

Even when viewed as a content-neutral time, place, or 

manner restriction intended to eliminate repetitive 
40 GARNIER V. O’CONNOR-RATCLIFF

comments, the Trustees’ complete blocking of the Garniers 

from their social media pages violates the First Amendment.

In a designated public forum, such as O’ConnorRatcliff’s Twitter page or the Trustees’ Facebook pages 

before the implementation of word filters, “the government 

may impose reasonable restrictions on the time, place, or 

manner of protected speech, provided the restrictions” are 

“narrowly tailored to serve a significant governmental 

interest” and “leave open ample alternative channels for 

communication of the information.” Ward, 491 U.S. at 791 

(quoting Clark, 468 U.S. at 293). Likewise, “speakers can 

be excluded” only when that exclusion is “narrowly drawn.” 

Hopper, 241 F.3d at 1074 (quoting Cornelius, 473 U.S. at 

800). A time, place, or manner restriction “need not be the 

least restrictive or least intrusive means of” serving the 

government’s content-neutral interests. Ward, 491 U.S. at 

798. But it may not “burden substantially more speech than 

is necessary to further the government’s legitimate 

interests,” nor may the government “regulate expression in 

such a manner that a substantial portion of the burden on 

speech does not serve to advance its goals.” Id. at 799. 

Accordingly, “the existence of obvious, less burdensome 

alternatives is ‘a relevant consideration in determining 

whether the “fit” between ends and means is reasonable.’” 

Berger v. City of Seattle, 569 F.3d 1029, 1041 (9th Cir. 2009) 

(en banc) (quoting City of Cincinnati v. Discovery Network, 

Inc., 507 U.S. 410, 417 n.13 (1993)).

Under this standard, O’Connor-Ratcliff’s decision to 

block Christopher Garnier from her Twitter page and the 

Trustees’ initial decision to block the Garniers from their 

Facebook pages were not narrowly tailored to serve a 

significant governmental interest.
GARNIER V. O’CONNOR-RATCLIFF 41

(i) First, on the record of this case, the Trustees’ decision 

to block the Garniers from the designated public fora did not 

advance a significant governmental interest. At trial, the 

Trustees testified that they blocked the Garniers from their 

social media pages because they believed that the Garniers’ 

repetitive comments had “a net effect of slightly pushing 

down anything” that the Trustees posted to their pages and 

tended “to just fill up the page” with irrelevant comments 

and “visual clutter.” In its narrow tailoring analysis, the 

district court concluded that blocking the Garniers 

“promoted the legitimate interest of facilitating discussion 

on [the Trustees’] social media pages.” Alternatively, the 

district court analogized to our case law assessing the 

application of rules at in-person local government meetings 

to conclude that the Garniers’ comments were “disruptive” 

because they were “unduly repetitious or largely irrelevant.” 

See White v. City of Norwalk, 900 F.2d 1421, 1425–26 (9th 

Cir. 1990). On appeal, the Trustees rely on the two 

rationales cited by the district court to support their 

contention that blocking the Garniers advanced a significant 

governmental interest.

The record in this case does not support the Trustees’ 

contention that the Garniers’ comments actually disrupted 

their pages or interfered with their ability to host discussion 

on their pages. Again, Facebook automatically trims lengthy 

comments, such as some of those left by the Garniers, 

requiring viewers interested in reading those comments to 

click a “See More” button to read beyond the first few lines 

of text. Similarly, on Twitter, replies to a user’s Tweets are 

not automatically visible; a viewer interested in reading 

replies to a Tweet must click on a particular Tweet and scroll 

to the replies to view them. And on either platform, viewers 

of the Trustees’ social media pages can, with the flick of a 

finger, simply scroll past repetitive or irrelevant comments. 
42 GARNIER V. O’CONNOR-RATCLIFF

Indeed, no matter how many comments or reactions are left 

in the interactive spaces underneath a Facebook post or a 

Tweet, the content of the original post remains prominent 

and unaffected; comments therefore do not, as the Trustees 

assert, have the effect of “pushing down anything” that they 

posted or meaningfully distracting from the “streamlined, 

bulletin board” appearance they say they wanted for their 

social media pages.

It is apparent that the Garniers’ repetitive comments 

bothered the Trustees. But there is no evidence that the 

repetitive comments “actually disturb[ed] or imped[ed]” the 

Trustees’ posts or prevented other viewers of the Trustees’ 

accounts from engaging in discussion. Norse v. City of Santa 

Cruz, 629 F.3d 966, 976 (9th Cir. 2010) (en banc).

Our cases governing the application of rules of decorum 

at local government meetings are not to the contrary, as they 

address a meaningfully different risk of disruption than the 

risk presented by the Garniers’ comments. In physical city 

hall meetings, where there is limited time and space 

available for public remarks, lengthy, “irrelevant or 

repetitious” comments “interfere with the rights of other 

speakers” or prevent the government “from accomplishing 

its business.” White, 900 F.2d at 1425–26. The only way to 

keep unruly speakers from impeding the ability to hear out a 

broad range of opinions from the public may be to cut off the 

microphone or to eject the speaker from the room. See id. 

Accordingly, rules of decorum applied to limit disruption at 

city council meetings “are not facially over-broad where 

they only permit a presiding officer to eject an attendee for 

actually disturbing or impeding a meeting.” Norse, 629 F.3d 

at 976 (emphasis added); accord White, 900 F.2d at 1425–

26.
GARNIER V. O’CONNOR-RATCLIFF 43

In contrast to meetings in the physical world, the features 

of Facebook and Twitter rendered the Garniers’ repetitive 

comments only minimally distracting. The Garniers’ 

lengthier Facebook comments were automatically truncated, 

and viewers of the Trustees’ pages could easily ignore their 

comments on either platform by scrolling past them. For that 

reason, the Garniers’ comments did not prevent the Trustees 

“from accomplishing [their] business in a reasonably 

efficient manner.” White, 900 F.2d at 1426. Nor did the 

Garniers’ comments “interfere with the rights of other 

speakers,” who remained free to ignore the Garniers’ 

comments and to leave their own. Id. 

“Actual disruption means actual disruption,” not 

“constructive disruption, technical disruption, virtual 

disruption, nunc pro tunc disruption, or imaginary 

disruption.” Norse, 629 F.3d at 976. The Trustees’ concerns 

about the “visual clutter” created by the Garniers’ 

comments, or the risk that their comments would upset the 

“nice and streamlined” appearance of their pages, do not on 

the present record amount to the kind of disruption that alone 

can support the decision to block the Garniers. 

In sum, the Trustees’ decision to block the Garniers did 

not serve a significant governmental interest.

(ii) Even if the Garniers’ comments did interfere with the 

Trustees’ interests in facilitating discussion or avoiding 

disruption on their social media pages, the Trustees’ decision 

to block the Garniers “burden[s] substantially more speech 

than is necessary” and therefore is not narrowly tailored. 

Ward, 491 U.S. at 799. Blocking the Garniers did not stop 

them from leaving only long, repetitive comments. The 

blocking prevented them from leaving any comments at all, 

no matter how short, relevant, or non-duplicative they might 

be. Further, O’Connor-Ratcliffe’s blocking of Christopher 
44 GARNIER V. O’CONNOR-RATCLIFF

Garnier on Twitter prevented him from even viewing her 

Tweets.

The overbreadth of the Trustees’ decision to block the 

Garniers is particularly apparent on Facebook, where the 

Trustees had at their disposal “easily available alternative 

modes of regulation” that would have had “considerably less 

impact on speech”—namely, the ability to delete or hide 

unduly repetitive comments. Berger, 569 F.3d at 1043 

(quoting Santa Monica Food Not Bombs v. City of Santa 

Monica, 450 F.3d 1022, 1041 (9th Cir. 2006)). The Trustees 

did exactly that before blocking the Garniers. The Trustees 

testified that deleting the Garniers’ comments took only a 

few seconds. The easily available alternative of deleting 

only repetitive comments rather than blocking the Garniers 

entirely accomplished the same goal—avoiding potentially 

disruptive repetitive posts—without eliminating the 

Garniers’ ability to interact with the Trustees’ pages to the 

extent they did so in an appropriate manner.14

Alternatively, the Trustees could have established and 

enforced clear rules of etiquette for public comments on their 

pages, including rules against lengthy, repetitive, or off-topic 

comments. Had the Trustees established such rules, it is 

possible that the Garniers would not have continued to post 

the same messages repeatedly, knowing that such comments 

could lead to their being blocked from the page. But the 

Trustees never established any rules of engagement with 

their social media pages and so never determined whether 

such rules would be an effective means of reducing 

assertedly disruptive comments.

14 As noted above, Twitter began permitting users to hide replies to 

their Tweets in 2019. 
GARNIER V. O’CONNOR-RATCLIFF 45

Although the narrow tailoring requirement is “just 

moderately stringent,” regulations of speech must “be 

targeted at real problems, and carefully calibrated to solve 

those problems.” Id. at 1059. In light of the minimal 

disturbance caused by the Garniers’ comments and replies 

and the alternative methods available to the Trustees to 

address any such disturbances, we conclude that the 

Trustees’ blocking of the Garniers on Twitter and on 

Facebook was not narrowly tailored. 

(iii) Nor is the Trustees’ decision to continue blocking 

the Garniers after the Trustees began using Facebook’s word 

filter feature to block all comments “reasonable in light of 

the purpose served by the forum.” Hopper, 241 F.3d at 1075 

(quoting DiLoreto, 196 F.3d at 965). Whether a speech 

restriction in a limited public forum is reasonable in light of 

the forum’s purpose depends on “whether the limitation is 

consistent with preserving the property for the purpose to 

which it is dedicated,” in this case, as a space where the 

Trustees can post content of their choice without any verbal 

comments from the public. DiLoreto, 196 F.3d at 967.

Given their implementation of word filters, the Trustees’ 

continued ban of the Garniers serves no purpose at all 

relating to the Garniers’ repetitive comments. The Trustees’ 

extensive word filters prevent the Garniers or anyone else 

from commenting on their Facebook posts. The only impact 

presently of blocking the Garniers is that it prevents them 

from registering non-verbal emoticon reactions to the 

Trustees’ posts. But the Trustees have not asserted any

interest in limiting non-verbal reactions. Nor does the record 

provide any reason to believe the Garniers’ use of non-verbal 

reactions, even repetitively, would disrupt or detract from 

the Trustees’ pages or the content of their posts. Because 

blocking the Garniers from their Facebook pages, in their 
46 GARNIER V. O’CONNOR-RATCLIFF

present form, adds nothing to the Trustees’ goal of 

eliminating comments on their posts, that restriction is not 

“reasonable in light of the purpose served by the forum.” 

Hopper, 241 F.3d at 1075 (quoting DiLoreto, 196 F.3d at 

965).

At trial, O’Connor-Ratcliff suggested that even though 

nobody can comment on her Facebook page any longer, 

unblocking the Garniers would prevent her from changing 

the way she uses her Facebook page—for instance, by 

deciding at some future date “to have some back and forth 

with my constituents.” But O’Connor-Ratcliff’s suggestion 

that she might choose in the future to include more back and 

forth with the public undermines her articulated rationale for 

excluding the Garniers—that their comments detracted from 

the streamlined, bulletin board functioning of her social 

media pages. And, in any event, if the Trustees later decided 

to open their Facebook pages to public comments again, they 

would still be able to hide or delete unduly repetitious 

comments or establish express rules of decorum prohibiting 

such comments. Until that time, the Trustees’ speculative 

concerns about future disruption are not a sufficient reason 

to block the Garniers from interacting with their pages when 

those pages now block all comments anyway. Again, 

“[a]ctual disruption means actual disruption.” Norse, 629 

F.3d at 976.

We conclude that the Trustees violated the Garniers’ 

First Amendment rights by blocking them from the Trustees’ 

social media accounts and that the district court was 

therefore correct to grant the Garniers declaratory and 

injunctive relief.
GARNIER V. O’CONNOR-RATCLIFF 47

D. Qualified Immunity

We need not dwell on the Garniers’ contention, on crossappeal, that the district court erred by granting qualified 

immunity to the Trustees as to the Garniers’ damages claim. 

The district court concluded that, at the time that the Trustees 

blocked the Garniers, it was not clearly established that the 

Garniers had a “First Amendment right to post comments on 

a public official’s Facebook or Twitter page.” We agree.

“Qualified immunity shields federal and state officials 

from money damages” unless the official violated a statutory 

or constitutional right that “was ‘clearly established’ at the 

time of the challenged conduct.” Ashcroft v. al-Kidd, 563 

U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 

U.S. 800, 818 (1982)). Until now, no Ninth Circuit or 

Supreme Court authority definitively answered the state 

action and First Amendment questions at issue in this case. 

“[A]bsent controlling authority,” “a robust ‘consensus of 

cases of persuasive authority’” can clearly establish law for 

purposes of qualified immunity. Id. at 742 (quoting Wilson 

v. Layne, 526 U.S. 603, 617 (1999)). But there was no such 

consensus here. At the time the Trustees blocked the 

Garniers from their pages in the fall of 2017, there were no 

court of appeals cases addressing similar facts. Only in the 

five years since the Trustees blocked the Garniers did four 

circuits decide cases concerning the First Amendment’s 

application to the decisions of government officials to block 

members of the public from their government social media 

accounts. As discussed, applying similar modes of analysis, 

two of those circuits found First Amendment violations and 

one did not, while one circuit applied a different mode of 

analysis and found no violation. See supra Section II.B.2. 

Whether or not those four cases (one vacated, see Biden v. 

Knight First Amend. Inst. at Colum. Univ., 141 S. Ct. 1220 
48 GARNIER V. O’CONNOR-RATCLIFF

(2021)), taken together, would constitute a sufficient 

consensus for qualified immunity purposes, the contours of 

the right asserted here were not at the time of the events in 

question “‘sufficiently clear’ that every ‘reasonable official 

would [have understood] that’” the actions taken violated 

that right. al-Kidd, 563 U.S. at 741 (alteration in original) 

(quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

The Garniers attempt to avoid this conclusion by 

describing the right at issue in this case extremely generally, 

as the “right to criticize public officials” free from 

retaliation. But the Supreme Court has exhorted us “not to 

define clearly established law at a high level of generality.” 

Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam) 

(quoting City & County of San Francisco v. Sheehan, 575 

U.S. 600, 613 (2015)). Given the novelty of applying the 

First Amendment and state action doctrines implicated here

to the burgeoning public fora of social media, we cannot say 

that reasonable officials in the Trustees’ position were on 

notice that blocking the Garniers from individual 

government officials’ public social media pages could 

violate the First Amendment.

E. Costs

Finally, the Trustees contend that the district court erred 

by denying, without prejudice, their motion to retax costs. 

We lack jurisdiction to address that question. 

Following trial, the district court taxed costs in favor of 

the Garniers. The district court then denied the Trustees’ 

motion to re-tax costs, noting that “[t]his case is currently on 

appeal” and that “[t]he grounds for appeal implicate any 

decision the Court would render on Defendants’ Motion to 

Re-Tax Costs.” Accordingly, the district court denied the 
GARNIER V. O’CONNOR-RATCLIFF 49

motion “without prejudice to Defendants’ refiling their 

motion after the appeal has concluded.”

Under 28 U.S.C. § 1291, this Court “has jurisdiction to 

hear appeals of ‘final decisions’ of the district court.” Reed 

v. Lieurance, 863 F.3d 1196, 1212 (9th Cir. 2017) (quoting 

Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir. 

1999)). “A ruling is final for purposes of § 1291 if it (1) is a 

full adjudication of the issues, and (2) clearly evidences the 

judge’s intention that it be the court’s final act in the matter.” 

Id. (quoting Elliott v. White Mountain Apache Tribal Ct., 

566 F.3d 842, 846 (9th Cir. 2009)). Consistently with those 

criteria, where the district court denies a party’s motion for 

attorney fees or costs “without prejudice to renewal, if 

appropriate, following final disposition of all matters on 

appeal,” we lack jurisdiction to review the district court’s 

denial without prejudice. Id. at 1203, 1212–13. 

As in Reed, the district court here denied the Trustees’ 

motion to re-tax costs without prejudice and “clearly 

intended to revisit the question” following appeal. Id. at 

1212. We therefore lack jurisdiction to review the district 

court’s order denying the motion to re-tax costs.15

III. CONCLUSION

The protections of the First Amendment apply no less to 

the “vast democratic forums of the Internet” than they do to 

15 Reed concerned an award of attorney fees, not costs as here. Reed, 

however, turned not on the relief requested but on the conclusion that the 

district court in that case, by denying the motion for fees without 

prejudice, “made no ‘final decision’” and did not “clearly evidence[]” an 

intention that its ruling “be the court’s final act in the matter.” 863 F.3d

at 1212 (first quoting Wakefield, 177 F.3d at 1160; and then quoting 

Elliott, 566 F.3d at 846). 
50 GARNIER V. O’CONNOR-RATCLIFF

the bulletin boards or town halls of the corporeal world. 

Packingham, 137 S. Ct. at 1735 (quoting Reno, 521 U.S. 

at 868). That is not to say that every social media account 

created by public officials is subject to constitutional 

scrutiny or that, having created a public forum online, public 

officials are powerless to manage public interaction with 

their profiles. As this case demonstrates, analogies between 

physical public fora and the virtual public fora of the present 

are sometimes imperfect, and courts applying First 

Amendment protections to virtual spaces must be mindful of 

the nuances of how those online fora function in practice. 

Whatever those nuances, we have little doubt that social 

media will continue to play an essential role in hosting public 

debate and facilitating the free expression that lies at the 

heart of the First Amendment. 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.

AFFIRMED.