School board members prevail in U.S. Supreme Court on whether public officials’ use of personal social media accounts constitutes state action subject to First Amendment constraints

Client(s) O'Connor-Ratcliff, Michelle and Zane, T.J.

On behalf of two municipal school board members, Jones Day won a landmark victory in the U.S. Supreme Court on the important question of when the First Amendment restricts the ability of government officials to exclude users from personal social-media accounts that the officials use to communicate with the public about their jobs. Jones Day's clients used their own personal Facebook and Twitter accounts to talk about the school district, and they blocked two parents from the accounts who had spammed them with repetitive comments. The Ninth Circuit held that this violated the First Amendment, reasoning that the school board members were acting under color of law because their accounts featured their official positions and communicated with constituents about governmental business. The Supreme Court vacated the Ninth Circuit's decision, adopting the new test that a public official's social-media activity constitutes state action only if the official possessed actual authority to speak on the State's behalf and purported to exercise that authority in the relevant social-media posts. In adopting and articulating that more official-friendly test, the Court relied extensively on points that Jones Day made at oral argument and in merits briefing about public officials' own free-speech rights as private citizens, after having persuaded the Court to grant certiorari to review the question.

O’Connor-Ratcliff v. Garnier, No. 22-324 (U.S.)