Nineteen years ago Facebook was born. Since then the new world it created has been the subject of controversy and lawsuits, perhaps none more important than the Poway Unified School District case coming before the United States Supreme Court in late October or early November.
At issue is whether elected officials can block citizens from their personal social media pages. After two Poway Unified trustees blocked a married couple’s critical comments on Facebook and Twitter, the couple sued, citing the First Amendment in what has emerged as a potential landmark case.
In the latest development in the case, the Biden Administration’s Solicitor General Elizabeth Prelogar, whose office will argue before the Supreme Court, has come down on the side of the Poway Unified trustees.
David Loy of California-based First Amendment Coalition said that if the court agrees with Biden’s solicitor general it would be a “license to censor.” He said he is surprised a Biden appointee would support blocking citizens from social media sites used by elected officials.
The First Amendment free speech issue has been a toss-up so far, with the 6th Circuit Court of Appeals ruling in favor of an elected official in a similar case in Michigan. But in California, the 9th Circuit Court of Appeals ruled in the Poway case that the First Amendment was violated.
On one side in Poway are T.J. Zane, a former trustee, and Michelle O’Connor-Ratcliff a current trustee. They both created public Facebook and Twitter pages around 2014 to promote their campaigns for office.
Judge Marsha Berzon of the 9th Circuit succinctly explained the issue in her ruling against the trustees.
She wrote that both were elected and “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.”
Berzon explained that Christopher and Kimberly Garnier “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.”
“Frustrated with the repetitive nature of the Garniers’ comments, the trustees began deleting or hiding the comments from their Facebook pages,” explained Berzon, and eventually the board members began blocking the Garniers.
“As state actors, the trustees violated the First Amendment when they blocked the Garniers from their social media pages,” Berzon concluded.
The Solicitor General position is that this ruling was wrong, that citizens need not have unfettered access to public officials’ private social media pages.
“There is little to be gained, and much to be lost, by adopting an overly expansive theory of state action that would extend to the use of nearly every public official’s private social-media account,” Prelogar said, adding that this would “undermine, not promote, First Amendment values.”
Loy doesn’t agree with her position, which he said “sees this as an ownership issue but that is not the case.” He said using social media is like “renting a hall for a public event. If it’s a campaign fundraiser, then the hall renter can ask people to leave, they control the agenda. If it’s a discussion on whether to pay for a new street, then it’s a public event and the renter of the hall can’t stop you from taking part in the discussions because they don’t like what you have to say.”
San Diego attorney Cory Briggs will be one of one of the lawyers in the case before the Supreme Court.