From yesterday’s opinion by Judge Paula Xinis (D. Md.) in Foldi v. Bd. of Ed. for Montgomery County:
Foldi and Mandel live in Montgomery County, Maryland. Foldi writes for a news magazine, The Spectator, and Mandel is a columnist for several national publications and has written extensively on education and parental rights. Id. In October 2022, the School Board announced the introduction of LGBTQIA+-themed books into the MCPS [Montgomery County Public Schools] curriculum. In response, several parents sought permission from MCPS for their children to “opt out” of any classroom instruction involving these books.
At first, it appeared that MCPS would permit this opt-out alternative. On March 22, 2023, MCPS confirmed that parents could choose to have their children read other material in lieu of the LGBTQIA+ books. But the next day, the School Board reversed course and informed parents that no such opt-out alternative would be available, nor would MCPS notify parents when classroom instruction would involve LGBTQIA+-themed materials….
The question of LGBTQIA+-inclusive reading materials became a hot button issue for MCPS. At a March 2023 School Board meeting for example, one parent vocally opposed the Board’s refusal to provide an opt-out alternative to parents on behalf of their children. In response, Board Member Harris challenged the protestor, publicly announcing that the parent’s position “is just telling that kid, ‘here’s another reason to hate another person.'”
Over the next few months, the debate over the propriety of the opt-out alternative intensified, and in advance of a June 6, 2023, School Board meeting, “scores of parents and community members” gathered in peaceful protest outside of the MCPS Carver Educational Services Center (“Carver Center”), where the meeting was being held. Also at the June 6th meeting, a female Muslim student attested to her discomfort with being made to read LGBTQIA+ books that ran contrary to her religious beliefs, to which Board Member Harris said she “felt kind of sorry” for the student, and opined about whether the student was “parroting [the] dogma” of her parents.
Predictably, these exchanges were the subject of ever-increasing media attention. Plaintiffs, in turn, planned to attend the next School Board meeting in person to oppose the use of LGBTQIA+-themed books and the denial of an opt-out alternative. Parents also planned to rally at the meeting to support an opt-out policy.
MCPS scheduled the next School Board meeting for June 27, 2023, and published the agenda a week in advance. The agenda made clear that the opt-out policy would be discussed during the open portion of the meeting. Because the School Board anticipated a healthy turnout for the meeting, it decided to limit the number of people who would be admitted into the physical meeting space. MCPS explained:
Because of the interest in the upcoming Board of Education meeting on Tuesday, June 27, the following safety measures will be implemented. Access to the Carver Educational Services Center building…will be limited to scheduled speakers and invited attendees. The parking lot on the east side of the building is the designated area for any large group gatherings. We remind you that all public Board of Education meetings can be viewed online at the district website, the MCPS-TV YouTube channel and on MCPS-TV.
On June 27, 2023, the open portion of the School Board meeting began at 3:38 p.m. and ended at 9:00 p.m. Only people who had signed up to attend the meeting and scheduled speakers were allowed into the Carver Center. However, people could observe the entirety of the meeting online. The School Board also provided a designated area for assembly on the Carver Center premises for anyone who was denied admission into the center itself.
Neither Foldi nor Mandel had signed up in advance to speak at the meeting, nor were they invited guests. So even though Foldi identified himself as a member of the press and asked to attend the meeting in person, he was turned away. Plaintiffs instead joined hundreds of parents and community members in the designated area to assemble and protest….
MCPS staff also engage in online discourse about LGBTQIA+ related issues through an “@MCPS-StaffPRIDE” X account (the “Pride Account”). The Pride Account, managed by the Pride Members, describes itself as “[a] safe, affirming professional & social network for MCPS staff who identify as part of the LGBTQIA+ community,” that offers “[r]esources and reminders for MCPS schools & offices.” The Pride Account shares LGBTQIA+-themed educational content, events, and announcements with the MCPS community. It is open to the public, allowing online readers to “reply,” “like,” “dislike,” or “share” information posted to the account.
The Pride Account is also connected to MCPS via the MCPS website. The website includes a link to a “Staff Affinity Page,” which, in turn, links to the Pride Account. Users can join the Pride Account only by emailing the Pride Members at their official MCPS email addresses. And such email addresses, MCPS makes clear, are to be used only for work related “[p]rofessional social media” activities. MCPS further advises that for professional social media activity and “[i]n alignment with recent court decisions, MCPS employees posting to social media in a professional capacity should not block users or delete comments on their own initiative.”
From November 2022 to June 2023, Mandel, through her X account, publicly criticized MCPS’ incorporation of LGBTQIA+ books into the curriculum without an opt-out alternative. Shortly before the June 27th School Board meeting, the Pride Members blocked Mandel from accessing the Pride Account. Mandel can no longer view posts from the account, nor can she share those posts with her commentary.
Plaintiffs sued, and the court generally concluded that “Plaintiffs have failed to make plausible a First Amendment violation arising from the limitation placed on in-person attendance at the June 27, 2023, School Board meeting.” The School Board is entitled to impose such content-neutral restrictions (here, that “only those who signed up in advance or who were invited to speak would be let into the Carver Center”). “These criteria alone did not impose any content-based restrictions. In fact, the majority of in-person speakers at the meeting opposed the opt-out policy.”
But the court concluded that the blocking of the plaintiffs from the social media account could give rise to a First Amendment claim:
… Plaintiffs plausibly aver that the Pride Members are state actors with actual authority to speak on behalf of MCPS on issues that matter to the LGBTQIA+ staff and community. First, the Pride Members, via the Pride Account, identified themselves with MCPS in several ways. They named the account “@MCPS_StaffPRIDE,” and its managers, the Pride Members, are identified via MCPS emails. The Pride Account also describes itself as a “safe, affirming professional & social network for MCPS staff who identify as part of the LGBTQIA+ community,” and touts as one of its main goals the provision of “[r]esources and reminders for MCPS schools & offices.” Moreover, the Pride Account is linked via the MCPS website’s Staff Affinity Page. Taking these facts in the light most favorable to Plaintiffs, the Pride Members have authority to speak on behalf of MCPS as to matters concerning the LGBTQIA+ staff and community.
The Complaint further makes plausible that the Pride Members exercised official authority to speak on behalf of MCPS about LGBTQIA+ issues generally and pertaining to the opt-out policy. In addition to conversations about the LGBTQIA+ curriculum, the platform also discussed gender-inclusive restroom signs at MCPS schools, and support for LGBTQIA+-inclusive school events. The Pride Account also included commentary relevant to the opt-out controversy. As pleaded, the Pride Members were not only cloaked with MCPS authority but exercised that authority when they blocked Mandel from the Pride Account….
The Pride Members argue that nonetheless immunity applies because the claimed constitutional violation had not been clearly established at the time that they denied Mandel access to the Pride Account. The Court is loath to credit an argument that flies in the face of binding precedent available to Defendants at the time. Davison v. Randall (4th Cir. 2019) stands for the proposition that public officials violate an individual’s free speech right by blocking access to media accounts because of the individual’s expressed viewpoints. Indeed, at the time, even MCPS acknowledged as much when it prohibited the blocking of user access to stay “[i]n alignment with recent court decisions.” Because it appears well-settled that alleged viewpoint discrimination amounts to a clearly established First Amendment violation, the Pride Members are not entitled to qualified immunity.
The Court recognizes, of course, that discovery will add important factual context to the allegations. Accordingly, the Pride Members are free to reassert qualified immunity at the summary judgment stage….
Sounds right to me. The Supreme Court’s Lindke v. Freed decision held that individual officeholders sometimes act in their private capacities when maintaining a social media page, and thus aren’t constrained by the First Amendment in deciding whom to block from that page. But it left unaffected the lower court cases that have held that when government bodies maintain social media pages, they are indeed constrained by the First Amendment and may not block readers and commenters based on viewpoint.
