Petitions of the week
By Kalvis Golde
on Oct 28, 2022
at 6:47 pm
Last year, the Supreme Court dismissed a case against former President Donald Trump that asked whether Trump had violated the First Amendment when he blocked people from his personal Twitter account while in office. This week, we highlight cert petitions that ask the court to consider, among other things, whether school-board officials who block particularly vocal parents from their personal accounts violate the First Amendment.
Christopher and Kimberly Garnier are parents in the city of Poway, California – located a few miles north of San Diego – who have a history of tense disputes with the local school board. Michelle O’Connor-Ratcliff and TJ Zane are members of the school board in Poway. For their school-board campaigns, O’Connor-Ratcliff and Zane created personal Facebook and Twitter pages, which they updated with their official titles once elected and began using to post about school-district business and news.
Christopher, who is Black, and Kimberly felt that their concerns over race relations in the school district were going unheard despite their regular attendance at school-board meetings. Turning to social media, the Garniers posted hundreds of repetitive comments on O’Connor-Ratcliff’s and Zane’s Facebook and Twitter pages voicing their concerns. O’Connor-Ratcliff and Zane eventually blocked the Garniers for spamming their accounts. The Garniers responded by suing O’Connor-Ratcliff and Zane for restricting their First Amendment rights.
The US Court of Appeals for the 9th Circuit sided with the Garniers. Because O’Connor-Ratcliff and Zane had updated their personal social-media pages with their school-board titles and regularly used them to publish school-district information, the 9th Circuit reasoned that blocking the Garniers from the pages rose to state action. The court held that the pages are a public forum in which the Garniers have a First Amendment right to participate.
In O’Connor-Ratcliff c. Garnier, the school-board officers ask the justices to decide whether they were acting in their official capacity when they blocked the Garniers on their personal Facebook and Twitter pages. The school district did not create, fund, or direct any content on their pages, O’Connor-Ratcliff and Zane point out. Posting announcements about the district and listing their official titles, they argue, does not transform personal social-media pages into official ones.
A list of this week’s featured petitions is below:
O’Connor-Ratcliff v. Garnier
Issue: Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.
Pulsifer v. United States
Issue: Whether a defendant satisfies the criteria in 18 USC § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).