Legal Update

March 25, 2024

What is in this Legal Update?

• Board Member Social Media Use

Board Member Social Media Use 

Recent decisions by the U.S. Supreme Court have established a new rule concerning when school board members and other public officials can restrict critical comments and users from their personal social media pages (See O'Connor-Ratcliff v. Garnier and Lindke v. Freed). This rule is not completely aligned with Colorado law on the subject, so school board members should take careful notice of this ruling. Best practices to comply with this ruling and the appropriate use of social media can be found in this legal update.  

Supreme Court Ruling 

The Supreme Court cases reviewed involved government officials who maintained private social media accounts where they shared updates about both their personal lives and their public roles. These officials blocked users who were critical of them. Blocking an individual through use of a government social media page can be considered “state action.” If a citizen is blocked from accessing the information, this could be a violation of their right to free speech. Lawsuits against the officials argued that the officials were using the social media page in their public capacity, and by being blocked, the individuals’ First Amendment rights were violated.  

The Court determined that a public official's social-media activity constitutes state action only if the official– 

1. possessed actual authority to speak on the State's behalf, and 

2. purported to exercise that authority when they spoke on social media.

The first prong means that a board member must be authorized, via “statute, ordinance, regulation, custom, or usage” to use the social media page to share information, post updates, or more in their official role. The Court explained that although the appearance and function of the social media activity are relevant, they cannot compensate for a lack of state authority. 

The second prong means that the public official must be speaking in their public capacity in the posts, rather than their personal capacity.

Colorado law 

A Colorado law that passed last year (C.R.S. 29-34-101), is affected by this ruling. That law grants local elected officials the discretion to block users from their private social media accounts for various reasons, including harassment or intimidation. The law differs from the Supreme Court ruling in two major ways: 

1. The Colorado law states that a board member has no duty to create or maintain private social media, and that a board member can restrict a user from their social media page for any reason. However, according to the Supreme Court’s ruling, a board member would violate the First Amendment if they blocked an individual from their page, or a post, if they were authorized to speak to board business on the page and purported to use that authority, regardless of whether the page was designated private or public. 
   
   

2. The definition of “private social media,” in Colorado law is “social media that is not supported by the resources of a local government and is not required by state or local law, ordinance, or regulation to be created or maintained by a local elected official. “ This definition differs from the Supreme Court’s analysis. If a board member is authorized by “custom or usage” to engage in certain activities related to the board on social media, this could mean the post or account is considered public, not private. Additionally, the Supreme Court’s ruling has no analysis regarding whether a local government uses their resources to support the account. Ultimately, the Supreme Court ruling includes more possibility that a post or account could be considered public, as compared to the cut-and-dry definition from Colorado’s law.

Best Practices

The most important thing to remember is that federal law (i.e. the Supreme Court’s ruling) trumps state law. As such, the Supreme Court’s ruling should be followed in any event it conflicts with Colorado law. 

Second, the Supreme Court’s ruling implicates potential First Amendment consequences if an employee is authorized to speak for the board. It is recommended to review your board’s policies to determine which officials can speak for the school district, and make sure that practices align with the policies. 

Third, the following best practices can help maintain a clear separation between public and private pages: 

• On private social media pages:

  • Include a disclaimer on the main account page that the account is solely for your personal use, and that any views expressed do not represent the board. 

  • Consider deactivating comments entirely on your private page to avoid situations that could implicate the First Amendment. 

  • Avoid posting about board business on your private page.

  • If you do want to post about something related to the board on your private page, make sure it is just sharing information already available elsewhere, rather than stating your opinion. 

• On public social media pages:

  • Include a disclaimer that the account is the public account used in your official role on the board.

  • Only use the account in your public capacity - avoid posting personal updates or personal opinions. 

  • Avoid stating or implying you are speaking for the board, if you are not authorized to do so. 

  • Consider deactivating comments entirely to avoid situations that could implicate the First Amendment.

CASB will update best practices as more information becomes available. If you have any questions, please reach out to CASB’s legal team: (Rachel Amspoker, ramspoker@casb.org; Hilary Daniels, hdaniels@casb.org; or Mikayla Unruh, munruh@casb.org).

 Member Legal Resources

As a reminder, the Member Legal Resources webpage, which features an index of CASB’s legal resources, is always available. These resources may still be located via the search tool.

CASB’s legal resources are for informational purposes only and do not constitute legal advice. Specific questions should be referred to the school district’s legal counsel.

 For Legal Update inquiries, please contact CASB’s Legal Team.