Luis Cruz: Welcome to “San Diego News Fix: The Backstory.” This week, the U.S. Supreme Court said it would take up a case from Poway Unified School District that tackles a contentious area of social media – specifically, when and if public officials can block people from their Facebook, Twitter or other social media s.
The case concerns T.J. Zane, a former Poway school district trustee, and current board member Michelle O’Connor-Ratcliff and their Facebook and Twitter pages. At issue is whether public officials with social media pages where they discuss public business can block individuals or if doing so violates the First Amendment.
ing us to discuss this case is Union-Tribune criminal justice and legal affairs reporter Greg Moran, enterprise editor Kristina Davis, editorial and opinion director Matthew T. Hall, managing editor Lora Cicalo, and we begin with publisher and editor Jeff Light.
Jeff Light: Thank you, Luis. OK, Greg Moran, fascinating story. Maybe just take a couple of minutes here to lay out some of the contours of what’s going on in our case and in the Michigan case.
Greg Moran: This case involves two school board trustees from Poway Unified School District, T.J. Zane and Michelle O’Connor-Ratcliff. T.J. Zane is no longer on the board; he stepped down in December. I think he was termed out. This deals specifically with their use of social media pages on Facebook and Twitter. They had both set up social media pages when they first ran for office in 2014 and 2016 as campaign pages, and then when they won and were on the board, these pages kind of morphed into their public-facing pages for school district news and what they were doing, and included posts about their visits to various schools in the district, issues coming up in front of the board and things like that.
In 2017 or so, a couple of parents in the district – Kimberly and Christopher Garnier – began interacting with them on their social media pages on Facebook and Twitter by posting a lot of comments. And the Garniers were particularly concerned with a couple of issues: There were a lot of misconduct allegations about the then-superintendent in the district and also some racial bias and racial issues in the district. The Garniers interacted very frequently with these pages.
As the courts have pointed out, none of their postings or their comments were threatening or profane or vulgar or anything that you’d find in a lot of comment sections. But what they maybe lacked in vitriol, they made up in volume. There is one instance where a fellow, I think it was Christopher Garnier, replied 226 times in 10 minutes to a single tweet on one of the pages. The trustees saw this as a kind of spamming and they took steps, using the tools available from both Facebook and Twitter to, essentially, block both of these individuals from their s.
The Garniers then went to federal court in San Diego. They filed the civil rights lawsuit saying that blocking them in what they saw as these kind of public-facing, official pages violated their First Amendment rights both to speech but also to petition the government, also part of the First Amendment.
They’ve won both in the district court and then the 9th Circuit Court of Appeal last year – in a case of first impression, the first time they ruled on this – upheld the lower court and said, “If you are a public official and you operate a social media page in this era and that page is connected – there’s a nexus between that page and your public duties – then blocking people, prohibiting them from commenting or interacting with you can be a constitutional violation. You can’t do that; it does infringe on their rights to speech and petitioning.”
That was one of about four or five rulings that appeals courts around the country have made on this. Most of them align with the 9th Circuit; however, there was one court that around the same time ruled on a case out of Port Huron, Mich. The city manager there had a Facebook page where he also posted a lot of information about the city and city business. He also had a lot of personal stuff in there. There was a constituent there who would interact very aggressively and not profanely, but again with volume. I think a lot of it had to do with COVID-lockdown-type issues and got blocked, sued in federal court, and the appeals court there came down differently than the 9th Circuit. They said, “No, no it’s a personal page of this guy. He’s talking about his job, but he’s got pictures of sunsets or ponies or whatever. And so it’s not an extension of his public role. Therefore, you can block him.”
So you have these two different holdings on this very contentious and growing issue of interactions on social media with public officials that have gone down on both sides. And, oftentimes, when that happens, the Supreme Court often will step in, resolve the conflict of the split in the circuit, and begin to lay down some rules for everybody going forward. And I think that’s where we are now.
Jeff Light: Yes. Great summary. So, Matthew Hall, I think your group opined on this very topic. Tell me your thoughts about political speech versus government speech. I think, in a lot of areas, there’s a lot of care taken to try to draw that line between those two domains. And then, of course, here’s the third one, which would be personal speech. So tell me how you you’re seeing this.
Matthew Hall: It’s interesting. People like to think of free speech as a bright line, but free speech is complicated, right? It’s not just as simple as you can’t yell fire in a crowded theater. Just to cut right to it, we think that politicians carry the First Amendment with them to social media, that if it applies at a public meeting, or city hall, that it should apply to their use of platforms that are used by hundreds of millions of Americans every day. And that seems clear to us.
But I will note: Greg did a great lay down of these cases, but these aren’t the first cases to be argued in the court of public opinion. They’re only the ones that made it to the Supreme Court. A couple of years ago, the then-Encinitas mayor now state Sen. Catherine Blakespear ran afoul of some constituents who took legal action against her, claiming that she had blocked them and she settled with them and issued an apology. She is not apologetic about it. They have said that she violated the of the agreement. And when we didn’t endorse her in the primary and cited this case, she actually came in with a very nuanced answer and a very deep dive into these issues.
Catherine, interestingly enough, is a former journalist. She has a bachelor’s and a master’s in journalism, worked at the LA Times and the AP, so understands the interplay between politics and journalists. And she pointed out, “Look, you guys didn’t let COVID denialists print what they wanted to say in letters or in essays. You drew lines around speech that defined speech. You ed the county supervisors when they tried to limit what people could say in public meetings, when those meetings were getting very raw and, in some cases, people were saying racist things to county officials.” And Catherine told us, “Look, I’ve been threatened. I have been threatened by people saying that they want to rape me.” And there are certainly lines that you can draw, and we agree with all that. She actually helped me, personally, and the board, look at it in a more holistic way, I think. Again, to my earlier point, that there is no bright line.
But I do think there are lines that you can draw, and I do think that blocking people on social media as a politician is not something that we should encourage or accept. And I hope that the Supreme Court kind of starts to figure out where we can draw these lines. Because, as I said, it’s complicated in one sense, but really, it’s also pretty basic and fundamental in another: The public has the right to interact with public officials.
Jeff Light: Yes, and Lora Cicalo, I know you’ve got a lot of thoughts and insights about this. To me, yes, the public has an absolute right to access to public officials and their istration of their public duties, but also these people are politicians, and they’ve got all sorts of forums where they speak politically, where they select who they’re speaking to. They charge you to come and talk to them. You can’t just walk in to the big Joe Biden fundraiser up in Del Mar because you want to talk to him. They’d say, “No, this is a political event, sir. Sorry. You’re not allowed in.” So, I’m not sure it’s so clear. I feel a little confused or ambivalent about the whole thing. Lora, tell me how you’re looking at this.
Lora Cicalo: I think part of the distinction that I would draw – and maybe the courts are drawing – is the nature of the platform. As Matt said, we do have control over what we decide to print or publish online. And if Matt’s team – the opinion team – decided they were not going to print letters from COVID deniers that contained untruths, that’s certainly within their right. I guess the distinction to me in this case is the platform – whether it’s Facebook or Twitter – can decide to block people, but that’s the platform owner, it’s not the politician. It’s not the public official making that determination. Just as a public official that we are quoting or writing a story about doesn’t have the determination of who else we’re quoting, who else can be in the story criticizing that public official or their opinions. That’s the duty and the right of the platform owner.
So, to me, this isn’t really an issue about the First Amendment rights of the public official to determine who can criticize them; that’s an issue that goes to the platform that they’re using. And I have a question for Greg and Matt as to where the court seemed to be drawing that line about what is a public page. In some cases, I think some of these public officials are arguing, “No, this really is a private page. Yes, I identify myself based on my public role, but I’m not using it in furtherance of my public work.” That seems like a very murky line. At what point does it cross into being a public page rather than their personal page?
Greg Moran: I think that’s clearly one of the issues that the Supreme Court is going have to resolve. There was some analysis there about the appearance and the purpose of the page, and that kind of gets into looking at and analyzing the content. If you’re the police chief and you have a Facebook page, and you’re putting up pictures of your grandkids or sunsets or the kind of innocuous elements of your personal life, that’s pretty clear that it’s not. But there is kind of a legal matrix that you go through to determine whether or not somebody is behaving as a state actor, or an agent of the state, or if they’re doing something on their time.
Now, those are standards that were developed for years ago, in the pre-digital world. And one of the challenges in this case – it came up a couple of years ago, in a different context: Then-President Trump had blocked a number of people from his Twitter . They sued and they won in the lower courts – the lower court said, “No, it is a First Amendment issue.” It got to the Supreme Court and was dismissed as moot because by that time President Trump was no longer in office; he had been defeated. But in dismissing it, Justice Clarence Thomas, said something like, “You know, we’re going to have to resolve this because it’s clear that the old rules, applying old doctrines to the new digital platforms, is not a straightforward proposition anymore. And so we have to kind of figure out some new things.”
So, whether or not that analysis of “You’re behaving as a state actor on your Facebook page” is going to be picked up whole and just laid down in the digital world is one of the things that they’re going to have to decide, I think.
Jeff Light: Yes, very interesting case, and that Trump case, I that.
Lora, your argument that, if I understand it properly, OK, so as a politician, if I block you, I am blocking everybody from seeing what you have to say, and I shouldn’t have that power. That’s a good argument, although being able to block people is fundamental to the platforms, and whenever I block you – whether I’m a politician or not – I am blocking people from hearing what you have to say on my page. But you can go start your own page and say whatever you want, right?
Lora Cicalo: Right. But I think there are two distinctions: One is if you’re a public official, you do not have the right to block criticism in every forum.
Jeff Light: Every forum or any forum? I need to open the doors to my rally to people who I don’t want there?
Lora Cicalo: No, but that is not considered the “public square.” If you’re a city council member and it’s an open city council meeting, you – as an individual, providing there’s not hate speech or threats – are bound by the First Amendment to allow public criticism. However, if it’s your private campaign rally, that’s different. Just as, in my understanding of these cases, if you have a personal Facebook page – even though you’re a public official, you have every right to block people on your private page. It’s a function of the “publicness” of your role. And if this is a page in which you are conducting public business, discussing public business, that’s different than if it’s your personal page, in which you retain the right to block people.
The distinction I’m making is it is not the public official’s right to determine the platform’s role in blocking people; you’re behaving as a public official in that space.
Jeff Light: Yes. I mean, it sounds a little bit like we’re enshrining Facebook as the Fifth Estate, something that I really don’t think is appropriate. But people could have all sorts of different perspectives on that, depending on your experience, your generation, your political philosophy. People have a lot of ideas about this.
Kristina Davis, what do you think about this whole dispute? You’ve covered courts for years and years, a lot of constitutional issues. What do you think about this?
Kristina Davis: I think it’s an incredibly nuanced issue. I can see all sides of the arguments, and it’s going to come down to so many different distinctions, where we draw that line. That’s for smarter people than me to figure out.
This is such a timely issue, though, and I am so glad that the Supreme Court is going to be looking at this, just to kind of know where we stand on this issue, because so many public officials and public agencies are all going to these social media platforms. You don’t know how many times, back when I was reporting, I would reach out to a public information officer at an agency for some information about something and they’d just point me to their Facebook page or their Twitter and say, “It’s all on there; go grab it.” It’s almost like this reluctance to even just deal with me on a more personal basis. “You know, we’d actually like to interview you about it. I have more questions about it.”
This is something that Greg and I talked about the other day, as he was writing this story, about how this is just going to become more and more relevant as more public officials and agencies want to funnel the public – and journalists – to social media pages as their main line of communication. We see it happening a little bit and that could be even more of a trend as we go forward. And I think it’s just going to be really concerning, if that’s really the direction that we’re going in. Blocking people is incredibly concerning, when you start thinking in those , and maybe Greg can expand on that. But just as journalists, that’s something that we have at the front of our minds.
Jeff Light: Yes, and I think Greg does have some thoughts on that, and I’ll let you share them in a second and sort of get the last word on this.
You know, it’s interesting to me. I wonder if these rulings assign new responsibilities that could encumber the social media platforms in new ways. So, now we’re going to need a Brown Act for who can be on Facebook right now, because it’s akin to the public meeting? I don’t know. We’ve really got to think that through. Is that realistic? And is that really the world we want to be in?
Greg, I thought you had some interesting insights about the journalism implications here.
Greg Moran: Yes, I think when this case gets to the Supreme Court, you’re going to see a lot of other organizations weighing in on either side – amicus briefs and so forth – and I suspect one of those will be media or newspapers, largely because of what Kristina said. So much – and it seems to me it’s accelerated in the last few years – of our and, I think, the public’s with agencies and individuals in government are now really being channeled by those entities through their social media pages – it’s more instantaneous or something like that. There are a lot of problems I have with it, but that’s what they’ve chosen to do.
If the court were to decide to go with the 6th Circuit and say, “No, you know, you can block if the page is not an extension of your job as a state actor; it’s fine,” it has bad – or worse – implications for journalists, because it will then empower the individual public official or elected official or the agency, with the ability to pick and choose who gets to ask them questions, or even who’s exposed to what they’re posting – some blocking kind of eliminates you entirely from seeing what’s on the page. And that can have a longer-term chilling effect on journalism and journalists.
If you are the head of the parks and rec department or something and you have a page, and you don’t like the reporter who’s covering parks and rec or what they’ve written, and if parks and rec is a very big important part of the community you’re in, and you block that reporter or otherwise restrict them from access to your social media page – which is the primary form of communication – yes, that affects that reporter and that news company. To me, it also sends a very chilling message to every other reporter, which is, “This could be you.” So, everybody’s got to play ball.
It could potentially vest elected officials and public agencies with even more power to pick the questioners or to pick their coverage, to influence their coverage, rather than a more open and kind of broader approach, which, I think, is certainly what the Garniers want and is one of the things that the court is going to have to decide here.
Jeff Light: Yes, great point. And, by the way, probably a topic of yet another podcast, because isn’t that what’s happening every day in the White House briefing room – picking who gets to sit there, calling on who gets to ask the question? I think you and I in San Diego are accustomed to the status of, “Of course, they have to take our questions.” But there are all sorts of people – journalists or self-defined journalists, which is what a journalist is, I think – who don’t get answers to their questions because that is what’s happening every day, this sort of selecting the messenger. But I think that makes it an even more powerful question right now.
Greg Moran: It does. And it’s interesting, because the last point is that that’s exactly what’s involved here: The moving force in this case is not a news organization, it’s not a reporter, it’s two parents in the district.
Jeff Light: Very good point. Yes, super interesting.
Luis Cruz: Thank you very much, Jeff, Lora, Greg, Kristina and Matt. To read the U-T editorial and the latest on this case, go to sandiegouniontribune.com.
