See You In Court – March 2026

Bob Bombast, veteran member of the Nutmeg Board of Education, decided that he needed to up his social media game.  In recent years, he has been the subject of a number of unkind comments on the Friends of Nutmeg Facebook page, and Bob decided that he needed to use social media to get his message across to the good people of Nutmeg. 

With that goal in mind, Bob established his own Facebook page, “Bombast’s Blast,” the introduction to which describes the page as follows:

Welcome to “Bombast’s Blast.”  My goal in serving these many years on the Nutmeg Board of Education has always been to help parents navigate through any problems they may have with the Nutmeg Public Schools.  Please reach out to me with any questions or concerns that you may have.  I will post your question (so don’t disclose overly-private details), and I will post my response here on behalf of the Nutmeg Public Schools.  I also welcome your comments.  The Nutmeg Public Schools are good, but with your help, we can always get better.

Bob was gratified when a number of parents posted their questions, to which he promptly responded on his Facebook page.  Sometimes, Bob was able simply to answer the question, and sometimes he stated that he would reach out to Mr. Superintendent or even the principal of a particular school to ask them to assist the parent who had posted a question.

From Bob’s perspective, “Bombast’s Blast” was a great success as he generated good will and projected the image of a VIP member of the Nutmeg Board of Education.  However, local provocateur Carl Crank soon began posting nasty comments on Bob’s Facebook page.  One question Carl posted read as follows: “Dear Bob.  How did a low IQ person such as yourself ever got elected to anything?”  Another read: “Dear Bob.  When will you resign your seat on the Nutmeg Board of Education?  You are an embarrassment to all of us.”

Carl has a history of criticizing Bob and the other Board members during public comment at Board meetings, and the “questions” that Carl posted on Bob’s Facebook page riled Bob up.  Bob promptly blocked Carl from posting on his Facebook page and deleted Carl’s prior posts from his “Bombast’s Blast” Facebook page.

When Carl next visited Bob’s Facebook page, he was livid that his posts were gone and that he was unable to post on Bob’s Facebook page.  Carl promptly sent an email to members of the Nutmeg Board of Education including Bob.  He railed against what he described as an assault on the First Amendment.  “Bob is a Fascist who can dish it out, but he can’t take it,” he wrote.  “If he is going to have a Facebook page, he must take the bad with the good.  I hope you guys have good insurance because I am going to sue you all for violating my free speech rights.”

At the next meeting of the Board, the members promptly convened in executive session to hear what Bob had to say for himself.  However, Bob was unrepentant, and he claimed that he has every right to decide who says what on his Facebook page.  Moreover, he told the other Board members, he was the one with a claim.  Bob then announced that he will be suing Carl for defamation for calling him a Fascist.

Mr. Chairperson told Bob to calm down because neither he nor the other Board members wanted to get in a fight with Carl.  “If things get ugly between the two of you,” Mr. Chairperson warned Bob, “you are on your own.”

“Don’t worry about me,” Bob responded.  “I’ll be fine.”

Should Bob be fine?  How about Carl?  What advice do we have for Bob?

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In recent years, the status of social media pages established by public officials has been the subject of litigation.  Some of us remember when President Trump was sued during his first term for blocking people from his Twitter account.  In Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019), the Second Circuit Court of Appeals ruled that President Trump’s actions violated the First Amendment because (1) his Twitter account was a public forum, and (2) President Trump’s actions in selectively blocking people with opposing views was therefore viewpoint discrimination by the government, which is prohibited.

After Twitter removed President Trump’s account altogether and he lost to President Biden in the 2020 election, the United States Supreme Court vacated the decision of the Second Circuit in the Knight case as moot.  Biden v. Knight First Amendment Institute, No. 20-197, 593 U.S. ___ (2021).  That action left us to wonder what the rules are. However, the Court clarified the law in 2024 by ruling that a social media page maintained by a public official will be considered a public forum subject to First Amendment protections only if two tests are met: (1) the public official must possess actual authority to speak on behalf of the governmental entity on a particular matter, and (2) the public official must purport to exercise that authority when speaking on the relevant social-media posts.  Lindke v. Freed, 601U.S. 187 (2024).  

Despite his claim to speak for the Board, Bob’s actions in blocking Carl will likely be considered actions of a private person.  As an individual Board member, Bob did not have the authority to speak on behalf of the Nutmeg Board of Education.  Accordingly, Carl will likely fail in his claim that Bob violated his First Amendment rights by blocking him.  

The Court remanded a companion case to Lindke back to the Ninth Circuit to apply the Lindke tests to a social media account maintained by a board of education chair.  On remand, the Ninth Circuit ruled that the actions of the board of education chair in blocking a person with contrary views on social media violated the First Amendment because the board chair had the authority to speak on behalf of that board.  O’Connor-Ratcliff v. Garnier, 136 F.4th 1181 (9th Cir. 2025).  The same would be true of Mr. Chairperson in Nutmeg if he blocked someone from a district social media account on political grounds.

The defamation claim that Bob plans to bring against Carl should also be unsuccessful.  Public officials must have (or develop) a thick skin because they will succeed with a claim of defamation only if statement in issue (1) is an assertion of fact, (2) that is not true, (3) that harms one’s reputation.  Bob’s being called a Fascist, however, will likely be considered an expression of opinion, not a statement of fact.  Moreover, for public officials (or public figures), an additional requirement applies.  To recover on a claim of defamation, a public official or public figure must also show that the false statement of fact that harmed reputation was made with malice or reckless disregard for the truth, a very high standard to meet. 

Finally, Bob stepped way out of bounds in operating his social media page.  As an individual Board member, he had no authority to speak or act on behalf of the Board.  Dealing with operational concerns that parents or students may have is the responsibility of the superintendent, the chief executive officer of the board of education, and is not the role of a board of education member.  Bob’s direct outreach to principals on behalf of parents was especially inappropriate because the superintendent, not board members, oversees the actions of administrators.  Bob may appropriately advise parents as to the chain of command and where they should go with their concerns, but he should not purport to intervene directly on their behalf.