Two Poway Unified school board members use their Facebook pages to celebrate student and staff success and post district highlights.
On March 1, Judge Roger T. Benitez will hear attorney Cory Briggs argue that the two board members* should pay “a reasonable $283,832” in fees and costs multiplied by 1.5 for having taken the case on a contingency basis — don’t pay unless you win.
Briggs — the recent San Diego city attorney candidate — was hired in 2017 by the married couple Christopher and Kimberly Garnier after Zane and O’Connor-Ratcliff blocked them from posting comments on the trustees’ Twitter and Facebook pages.
Benitez held a nonjury trial Sept. 21-22 in downtown federal court on the First Amendment case — similar to one involving Donald Trump and his Twitter feed. The judge ordered the pair to open their social media to comments.
The court’s ruling in favor of the Garniers came Jan. 14, and Briggs filed his motion for attorneys fees last Thursday.
Briggs defends his $750-an-hour rate — along with a $275 rate for associate Nora Pasin and $150 rates for his team of four paralegals.
He said his law firm acted in good faith in keeping track of its time — even trimming its basic request by $20,000.
The Garniers first approached Briggs nearly four years ago, and by the time his fees request is heard in March the lawsuit will have been pending for nearly 3 1/2 years – “without any payment to Plaintiffs’ counsel.”
Briggs and lawyers for the school district didn’t respond to requests for comment. Neither have the trustees or the Garniers. It wasn’t known whether an appeal was planned.
But court records show Benitez took care in deciding a case with many facets.
The Garniers, notable for another court fight with Poway Unified and Kim’s failed run for school board in 2018, conceded that they spammed the social media of Zane and attorney O’Connor-Ratcliff but argued that federal law gave them the right to post comments on the trustees’ accounts.
For example, Chris Garnier sent 226 tweets to O’Connor-Ratcliff over 10 minutes on Oct. 17, 2017, “sending each tweet as a reply to every tweet she ever posted,” Benitez said in his findings of fact. He also made the same comment on 42 O’Connor-Ratcliff Facebook posts.
The Garniers testified they repeated comments because they wanted to reach other Facebook users who might only look at one particular post.
“By repeating their message on each post, Plaintiffs reasoned, they would raise the issues that mattered to them involving PUSD to a broader audience,” the judge wrote.
Zane testified the content of Chris’ Facebook posts were “not particularly” of any concern to him, Benitez wrote.
“Instead, Zane’s issue with Plaintiffs’ posts on his social media page was the alleged disruption and ‘spamming’ nature of the comments, which went against Zane’s intent to have the page “just be very streamlined” in a “bulletin board nature.”
Zane said at trial he never understood Chris’s decision to repeat comments beneath each post he made.
That led Thomas Joseph Zane — former executive director of the Republican Party of San Diego County and Lincoln Club president and CEO — to set up a filter that effectively blocked the Garniers from posting comments on his Facebook page.
As of 6 p.m. Monday, Zane’s Facebook page allowed comments from nobody.
“This Page is a non-governmental, one-way ‘bulletin board’ intended to transmit news as originally shared by other sources, and the opinions and political activities of T.J. Zane,” he posted. “All Comments – regardless of content – will be ‘hidden’ from Public view.”
Benitez said Zane began using word filters on his page in December 2018. He hasn’t blocked anyone on Twitter, though, which he rarely uses — with only a handful of tweets in 2020.
“Zane testified that his intent is not to limit only potentially offensive content,” the judge said. “Instead, he seeks to preclude all comments on his public page” by adding more than 2,000 words to his Facebook word filter, including “he, she, it and that.”
He said O’Connor-Ratcliff also adopted word filters, “though [she] uses a much smaller set of words. Her intent, likewise, is now to eliminate all comments and use her public Facebook page as a ‘bulletin board.’”
According to First Amendment Watch, a project of Arthur L. Carter Journalism Institute at New York University, a social media site run by the government or a public official is likely categorized as a limited public forum protected by the First Amendment.
“Officials would violate the First Amendment if they discriminated against users because of their viewpoint,” it said, noting a case in which appeals courts have found Donald Trump couldn’t block critics on his old Twitter account.
“Elected officials from local sheriffs to governors … have been sued after blocking critics from their social media accounts,” said a Dallas Morning News report in July 2019.
It noted how, in 2017, a woman sued Hunt County Sheriff Randy Meeks after his office deleted a comment he disagreed with on the official Sheriff’s Office page and blocked her.
“In April, the 5th U.S. Circuit Court of Appeals ruled that the sheriff’s office engaged in unconstitutional viewpoint discrimination when the comment was deleted,” said the story.
In January 2019, the 4th U.S. Circuit Court of Appeals became the first federal appellate court to address whether public officials’ social media accounts can be “public forums” under the First Amendment, said the Knight First Amendment Institute at Columbia University.
“The lawsuit was brought by Brian Davison, a Virginia resident who was temporarily blocked from the official Facebook page of Phyllis J. Randall, the chair of the Loudoun County Board of Supervisors,” said the institute. “The lawsuit maintained that Randall’s Facebook page is a ‘public forum’ under the First Amendment, and that Randall may not exclude people from it based on their views.”
In the Poway case, Zane and O’Connor-Ratcliff argued that their blocking was “content-neutral” and narrowly tailored.
Benitez agreed to a point, but rejected the “bulletin board” argument.
“For example,” he said, “Zane made an original post on June 29, 2017, on which it appears the official PUSD Facebook account made a comment. … That positive comment was still visible on the date the screenshot was taken, September 8, 2017. Thus, at least when the suit was filed, there is strong evidence these pages were not ‘bulletin boards.’”
Benitez said blocking was initially permissible — like ejecting a disruptive citizen from a City Council meeting. But an unruly meeting-goer can’t be barred permanently.
“Only the fact that the blocking has gone on for three years requires the Court to intervene here,” he said.
Benitez suggested that the defendants adopt “content-neutral rules of decorum” such as reasonable limits on repeated posting of comments and include sanctions such as blocking for a limited period of time.
“Though the Court cannot decide a precise time limit that might be reasonable, blocking for one month may pass muster given the ease at which a page administrator can block and unblock a user from a particular page. Blocking for three years, on the other hand, cannot.”
He said it would be a sad conclusion if all public comments were barred on their social media.
“The actions of a few repetitive actors should not deprive so many of this important civic tool,” he said, “and the Court hopes that Defendants do not choose this course of action.”
Updated at 12:48 p.m. Feb. 17, 2021
*Correction: An earlier version of this report said the Poway Unified School District faced legal expenses as well as the school board members. Poway Unified was dropped as a defendant in January 2018.