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School Board Members' Use of Social Media

F3, a California-based law firm, held a webinar yesterday on the Supreme Court's ruling of O'Connor-Ratcliff v. Garnier, which impacts a school board member's ability to control their social media pages. While not an official legal opinion or guideline, here we will provide the basic take-a-ways for Trustee governance. 

In O'Connor-Ratcliff v. Garnier, a school board member hid comments and blocked individuals for some of their comments on social media sites. Originally, the 9th circuit found that this was not allowed because it violated those individuals' free speech rights. In another case, Lindke v. Freed, a city manager had done the same as the school board members, but the 6th circuit found in favor of the city manager because it was his personal page. Because of these two differing rulings, the United States Supreme Court decided to issue a two-prong test to determine when it is okay to silence others on social media when you are an elected official.

The first question that must be asked is if the school board member has been granted the authority by their organization to open a public forum and allowing itself to be subject to free speech requirements. In the case of school boards, the answer is usually no because even though the individual ran their own campaign, once elected, they now serve as one member of a five-person board and their authority rests only with the board when it acts as a majority. Sometimes that Board's policies or by-laws may grant certain members, like the Board President, authority to act on behalf of the Board regarding certain things. F3 encourages all boards to take a look at their policies and by-laws to see if authority has been granted to those individuals. If the by-laws or policies contain no such granted authority, it is also important to know if there are any long-standing customs to grant authority that are in written format. Those may also subject the Board to certain authorities being granted. If the board member has been granted the authority, you go on to the second question. If not, then that individual is allowed to block individuals or delete comments that they don't like from their pages. 

The second question is whether the board member is purporting to hold themselves out to use the authority on a social media page. An example of this would be if a board member used the phrase "As the Board President" or "As a Board Member" when making a social media post. You can, however, and F3 suggests you do make a disclaimer on your post or social media page something to this effect: "the views expressed here are my own personal opinions." This creates a heavy presumption that the page is private or personal and that the individual is not acting on behalf of the Board on which they serve. Even with a disclaimer, however, there are some factors that can erode this presumption. The first is that the individual's social media page is the only place that the public can find that information related to the Board's position. Therefore, it is strongly recommended that posts link back to the Board's website or public information that is available elsewhere. The second is whether the individual is using the district's staff, funds, or time to run the social media page. If the presumption is met without anything to erode it, it is likely the page will not be subject to free speech requirements. However, if the presumption is rebutted, you may be subject to free speech guidelines. 

For more information, you can read this article put forth by F3 Law or you can contact Peter Fagen directly at 

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