Christopher Garnier v. Michelle O'connor-Ratcliff ( 2022 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    CHRISTOPHER GARNIER; KIMBERLY            Nos. 21-55118
    GARNIER,                                      21-55157
    Plaintiffs-Appellees/
    Cross-Appellants,           D.C. No.
    3:17-cv-02215-
    v.                         BEN-JLB
    MICHELLE O’CONNOR-RATCLIFF;
    T.J. ZANE,                                 OPINION
    Defendants-Appellants/
    Cross-Appellees.
    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 Defendants-
    Appellants/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-hide-
    replies/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 then-
    Superintendent 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
    Relations between the Garniers and PUSD further soured around
    4
    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 non-
    verbal reactions, such as “liking” their posts with a thumbs-
    up 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 re-
    file 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 non-
    verbal “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 off-
    duty 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’Connor-
    Ratcliff 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 off-
    duty 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’Connor-
    Ratcliff’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 cross-
    appeal, 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
    Reed concerned an award of attorney fees, not costs as here. Reed,
    15
    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.
    

Document Info

Docket Number: 21-55118

Filed Date: 7/27/2022

Precedential Status: Precedential

Modified Date: 7/27/2022

Authorities (47)

Wilfredo Martinez, A/K/A Wilfredo Martinez Rodriguez v. ... , 54 F.3d 980 ( 1995 )

Christ's Bride Ministries, Inc. v. Southeastern ... , 148 F.3d 242 ( 1998 )

Trevino ex rel. Cruz v. Gates , 23 F.3d 1480 ( 1994 )

DCD Programs, Ltd. v. Leighton , 90 F.3d 1442 ( 1996 )

Williams v. United States , 71 F.3d 502 ( 1995 )

Slyvester Harris v. Richard G. Harvey, Jr. , 605 F.2d 330 ( 1979 )

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Wakefield v. Thompson , 177 F.3d 1160 ( 1999 )

DiLoreto v. Downey Unified School District Board of ... , 196 F.3d 958 ( 1999 )

Jensen v. Lane County , 222 F.3d 570 ( 2000 )

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lorraine-kirtley-v-carol-h-rainey-and-the-marital-community-roy-rainey , 326 F.3d 1088 ( 2003 )

Myron S. Gritchen v. Gordon W. Collier , 254 F.3d 807 ( 2001 )

Thomas Anderson v. Charles Warner County of Mendocino ... , 451 F.3d 1063 ( 2006 )

Parks School of Business, Inc., Dba Parks College, a New ... , 51 F.3d 1480 ( 1995 )

Norse v. City of Santa Cruz , 629 F.3d 966 ( 2010 )

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