UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 CHRISTOPHER GARNIER; and Case No.: 3:17-cv-02215-BEN-JLB 12 KIMBERLY GARNIER, FINDINGS OF FACT AND 13 Plaintiffs, CONCLUSIONS OF LAW 14 v. 15 MICHELLE O’CONNOR-RATCLIFF; and THOMAS JOSEPH ZANE, 16 Defendants.

Plaintiffs Dr. Christopher Garnier and Ms. Kimberly Garnier (collectively, “Plaintiffs”) are parents of children in the Poway Unified School District (“PUSD”). Defendants Ms. Michelle O’Connor-Ratcliff and Mr. Thomas Joseph Zane (collectively, “Defendants”) are members of the PUSD Board of Trustees. Plaintiffs allege Defendants blocked them from commenting on their Facebook and Twitter pages, depriving them of their federal constitutional rights in violation of 42 U.S.C. § 1983. Compl., ECF No. 1. Plaintiffs also allege violation of their state constitutional rights. Id. This case is one of a growing number applying the First Amendment to the activities of elected officials on social media platforms. See, e.g., Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (finding President Donald Trump’s Twitter account to be a designated public forum and that blocking users was unconstitutional viewpoint discrimination); Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) (holding that a public official who used a Facebook page as a tool of her office exercised state action when blocking a constituent); Robinson v. Hunt Cty., Texas, 921 F.3d 440 (5th Cir. 2019) (finding that a government official’s act of blocking a constituent from an official government social media page was unconstitutional viewpoint discrimination); Faison v. Jones, 440 F. Supp. 3d 1123 (E.D. Cal. 2020) (granting plaintiffs’ motion for a preliminary injunction and ordering defendant county sheriff to unblock plaintiffs on his official Facebook page by finding the relevant page was a public forum); Campbell v. Reisch, 367 F. Supp. 3d 987 (W.D. Mo. 2019) (denying motion to dismiss and finding that defendant state legislator was acting under color of law when she blocked plaintiff from her official Twitter account); Morgan v. Bevin, 298 F. Supp. 3d 1003 (E.D. Ky. 2018) (denying plaintiffs’ motion for a preliminary injunction prohibiting defendant state governor from blocking plaintiffs on Facebook by finding the relevant page was not a public forum). The Court conducted a two-day bench trial on Plaintiffs’ claims on September 21 and 22, 2020. The following is a brief procedural background of this case, along with the Court’s findings of fact and conclusions of law from that trial. See Fed. R. Civ. P. 52(a). As explained below, the Court finds in favor of Plaintiffs’ on their Section 1983 claim. Because Plaintiff did not offer evidence or argue the state law claim, the Court declines to find Defendants’ conduct violated the California Constitution. I. PROCEDURAL BACKGROUND On October 30, 2017, Plaintiffs filed suit alleging one claim for violation of federal constitutional rights and one claim for violation of state constitutional rights, seeking general and punitive damages as well as injunctive and declaratory relief. ^[1] Compl., ECF No. 1, 5. Prior to the case’s transfer to this Court, Defendants moved for summary

1 Plaintiffs initially also named PUSD in this lawsuit but voluntarily dismissed the 28 district on January 26, 2018. ECF No. 9. judgment on all claims. Mot., ECF No. 34. On September 26, 2019, Judge Thomas J. Whelan issued an order granting Defendants’ motion with respect to Plaintiffs’ damages claim reasoning that damages were barred by qualified immunity. Order, ECF No. 42, 24. Judge Whelan denied Defendants’ motion with respect to Plaintiffs’ requests for injunctive and declaratory relief. Id. Following transfer, the case proceeded to a bench trial. At the beginning of trial, the Court informed the Parties that it had reviewed Judge Whelan’s order and that it adopted the rulings set forth in the order. Trial Tr., ECF No. 80, 5:21-24. To formalize those rulings, the Court finds Defendants: (1) are entitled to qualified immunity for Plaintiffs’ damages claims; (2) acted under color of state law in blocking Plaintiffs from their social media pages; and (3) created designated public forums on their social media pages. The reasoning for these determinations is set forth in Judge Whelan’s order, which the Court adopts for these findings of fact and conclusions of law except for the ruling on standing. See Order, ECF No. 42. The exception for the standing ruling is necessary because the evidence presented at trial indicated that Zane may have “unblocked” Kimberly Garnier before trial. “The Supreme Court has noted that the doctrine of mootness requires that the ‘requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).’” McKercher v. Morrison, Case No. 18- cv-1054-JTM-BLM, 2019 WL 1098935, at * 2 (S.D. Cal. Mar. 8, 2019) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68, n.22 (1997)). Because the evidence received at trial regarding standing differed in some respects from the Parties’ claims in their briefing on the motion for summary judgment, the Court also makes findings of fact and conclusions of law with respect to each Plaintiff’s standing as to each Defendant’s alleged actions. Aside from the continuing analysis of standing, the remaining issue for trial was whether Plaintiffs’ comments and replies disrupted Defendants’ original posts on their social media pages, “because if [Plaintiffs’] comments did not disrupt the original posts, then it is reasonable to infer that [Defendants’] claimed justification for blocking [Plaintiffs] was a pretext and that they actually blocked [Plaintiffs] because of the content of their comments.” Trial Tr., ECF No. 80, 6:4-11. Plaintiffs claim that: (1) Defendants blocked them from posting on their social media pages; (2) Plaintiffs’ comments and replies prior to blocking did not disrupt Defendants’ original posts; and (3) the blocking was impermissibly content-based. See generally Pls.’ Br., ECF No. 85. Defendants argue that: (1) any blocking left open alternative channels of communication; (2) the blocking was content-neutral and narrowly tailored; and (3) as officials of the legislative branch, their social media accounts should be treated differently from those of executive branch officials. See generally Defs.’ Br., ECF No. 84. II. FINDINGS OF FACT Following the testimony and exhibits received at trial, the Court makes the following findings of fact. A. Parties and Pages Plaintiffs Christopher Garnier and Kimberly Garnier are parents of children who are students in PUSD. Trial Tr., ECF No. 80, 87:20-23. Defendants Michelle O’Connor- Ratcliff and T.J. Zane are members of PUSD’s Board of Trustees. Id. at 112:7; 153:1. Both Defendants were first elected in 2014, and both still serve on PUSD’s Board of Trustees. Id. at 114:11; 153:5. Zane has a Facebook account and maintains at least two pages. Id. at 112-115. He has a personal profile page that he uses for family and friends as well as a public page he uses for campaigning and issues related to PUSD. Id. at 113:25-114:20. Zane created the public page in 2014. Id. at 114:3-6. Zane is the only administrator of the public page. Id. at 114:12-25. Zane also has a Twitter account that he rarely uses but has interacted with Christopher Garnier on Twitter, which eventually led to an in-person meeting between the two. Id. at 138:8-10. Zane testified that Plaintiffs also posted on his personal and business Facebook pages, after which he blocked them from posting there. Id. at 137:12-13. Zane’s decision to block Plaintiffs on his personal and business Facebook pages is not at issue here. Like Zane, O’Connor-Ratcliff has a Facebook account. Id. at 153:13. She has both a personal page that she uses for family and friends as well as a public page she uses for campaigning and issues related to PUSD. Id. O’Connor-Ratcliff created her public page sometime before 2017. Id. Since 2017, O’Connor-Ratcliff has also used a Twitter account for PUSD and campaign purposes. Id. at 184:6-8. O’Connor-Ratcliff and Zane successfully created and published original social media content on Facebook and Twitter – known as “posts” and “tweets,” respectively – related to PUSD on their public Facebook pages Twitter feeds. See, e.g., Pls.’ Ex. ^[4], 1; Ex. ^[5], 1-25; Ex. 6, 1-88; Ex. 7, 1; Defs.’ Ex. “U,” 25-130. Neither O’Connor-Ratcliff nor Zane established rules of etiquette or decorum regulating how the public interacted with their social media accounts. Trial Tr., ECF No. 80, 115:6-9; 154:21-23. Defendants testified that they intended their Facebook and Twitter pages to be used in a “bulletin board” manner—providing one-way communication from themselves to their constituents. See, e.g., id. at 130:10-16, 131:6-19, 133:11-12, 147:13-15, 148:7, 168:15-16, 174:1-8, 185:16-19. However, at least through 2017, both also used Facebook for interactive purposes by replying to comments on their posts from other constituents about PUSD issues. See generally Pls.’ Exs. 3-4. There is no evidence O’Connor-Ratcliff used Twitter for similar interactions because her Twitter feed shows only posts, not comments and replies to others. Pls.’ Ex. ^[5]. Zane used Twitter to interact—indeed, even with Christopher Garnier. He has not blocked Plaintiffs on Twitter. B. PUSD Boarding Meetings in the Physical World At public meetings of PUSD’s Board of Trustees, members of the public can express their views to board members. Trial Tr., ECF No. 80, 178:3-24. Public comments may be made on any topic of the speaker’s choosing but do not allow for a response from members of the Board of Trustees. Id. at 21:20; 179:1-8. Public comments are also limited to three minutes per speaker. Id. at 178:7-12. There are several members of the public who appear at each meeting and often press the same points. Id. at 113:6-16. PUSD does not have a policy prohibiting members of the public from appearing at subsequent meetings and repeatedly addressing the same issues to the Board. Id. at 133:22. Both Defendants testified that they do not leave the room during the public comment time, even when the comments they are hearing are repetitive. Id. at 154:4-20. C. Other Alternate Avenues of Communication Both Defendants testified that receiving feedback from constituents is an important part of their duties as Trustees. In addition to the public comment portions of Board meetings discussed above, both Defendants maintain email addresses provided by PUSD that they use to conduct official business. The PUSD Board of Trustees also has a policy for the public to make a complaint about a Trustee. Id. at 58:6. Both Defendants testified that the public frequently uses in-person comments and their PUSD email addresses to contact them. Id. at 134:16-18; 168:25. O’Connor- Ratcliff testified Plaintiffs emailed her PUSD email address 780 times. Id. at 173:15. Plaintiffs testified that email messages sent to Defendants went unanswered or the recipient refused to talk or meet. See, e.g., id. at 21:15-22:11, 89:21-90:5. Christopher Garnier also submitted complaints about both Defendants pursuant to the Board of Trustees’ policy but received no response. Id. at 58:2-24. However, Defendants never attempted to prevent Plaintiffs from speaking during the public comment period of a Board meeting and never attempted to prevent Plaintiffs from sending emails to their PUSD email addresses. Moreover, Zane has even met with Christopher Garnier in-person on at least two occasions. Id. at 138:6-7. D. Facebook Page and Twitter Account Functionality

The crux of this case focuses on the alleged disruption of Defendants’ Facebook pages and Twitter feeds. To analyze whether and how disruption on those platforms can

occur, an understanding of how the platforms display content is required. On both Defendants’ public Facebook pages, Defendants, respectively, are the only people who can create original “posts.” Id. at 115:17. Nonetheless, members of the public are generally allowed to interact with the content Defendants post through “comments” and “reactions” on the Defendants’ original posts. When accessing Defendants’ Facebook pages, Facebook automatically truncates lengthy posts, requiring a viewer interested in reading the full post to click a “See More” button beneath the truncated post. See, e.g., Trial Tr., ECF No. 80, 29:5-19,1 93:11-95:2; Pls.’ Ex. ^[3], 3 and 19; and Defs.’ Ex. U, 150. For viewers who have not clicked “See More” on the post, Facebook shows only the beginning of the post and only the most recent or most relevant comments. An illustration may be beneficial to the reader. The picture below depicts a post made by O’Connor-Ratcliff on August 28, 2017. O’Connor-Ratcliff’s post is long enough that a viewer is required to click “See More” to read her entire post.

2 The Court notes its findings of fact here are limited by the evidence received at trial. Other cases examining social media blocking have attempted to make similar 26 descriptions of social media platforms’ functionality based on the evidence submitted in 27 those cases, see, e.g., Morgan, 298 F. Supp. 3d at 1007, but the Court is hesitant to adopt anything outside of the record in this case because the functionality of these platforms 28 constantly changes, making adoption inappropriate for judicial notice. ^[1] & Michelle O'Connor-Rateliff 2 PLAGE a. invitation to provide important public input (via PLD Director of 3 Communications): in the weeks to come, we need your help in planning our new by-disirict 4 Board of Trustee elections. PLSD is changing the process by which voters select our elected officials. Currently, more than 60 other cities and 150 school districts across the state are being impacted and must implement 5 these changes by the next election cycle Beginning in 2019, elections for PLSD school board members wi. 6 See More ipeeasy, 8 ci ssereeteiny ee 9 10 11 13 PUBL “ HEARING 15 16 Uke | Commant > Sharm @r 17 o x 18 ad ee Q 2 19 & Michelle O'Connor-Ratcliff 20 Auguet 26 atE4am | ABC News did this piece on the incomparable Megan (Gross from Del Morte 21 HS and how she inspered her student to become an adaptive PE teacher. That's our National Teacher of the Year! 22 23 24 Ex. ^[3], 3. If a Facebook user wishes to skip past this post, she need only scroll past 25 || the truncated post, which takes a brief amount of time. Indeed, as shown above, 26 ||O’Connor-Ratcliff’s next post (dated August 26, 2017) is also visible on this screenshot. 27 Lengthy comments are treated similarly to lengthy posts. On Facebook, comments 28 || in response to a post appear below the post. See, e.g., Pls.’ Ex. ^[3], 4-6; Pls.’ Ex. 6, 6 and |] 10. There is no limit on the number of comments that can be made within a specific || period of time, and the evidence produced at trial indicates such comments can be quite lengthy. See generally, Defs.’ Ex. U. To read a lengthy comment, the viewer must click More” on the truncated beginning of a comment. Pls. Ex. ^[3], 75. The individual || viewer selects whether they will see the most recent or most relevant comments. Trial || Tr., ECF No. 80, 183:10-13. The picture below depicts a Facebook post shared by O’Connor-Ratcliff on August 2016. There are thirteen reactions to the post using the “thumbs-up” symbol from ||other members of the public. The picture displays the beginning of a lengthy comment |/on the post made by a non-party to this action. A Facebook user must click “See More” show any text beyond the truncated beginning of the comment. In this instance, ||O’Connor-Ratcliff also replied to the comment. — = 14 SOT 15 | pans 16 17 < 19 eel oe 20 Pune Jcomment 4 Snare ar 21 Cleomclogeal” 23 Soo 24 Sake aeincaymccictke Interim Superintendentis on the agenda. 26 @ rte 3 comment a a 27 li sar abe ee fa fate 28 || Pls.’ Ex. 6, 6. Again, if a Facebook user wishes to skip past this comment, she need only scroll past the truncated comment, which takes a small amount of time. When a video is linked in a comment to a Post, the video does not play || automatically when a Facebook user reads the comment. Instead, the user must click a || link to watch the video or can scroll past the comment containing the video link almost ||instantaneously. Trial Tr., ECF No. 80, 108:20-109:12. The picture below depicts a || Facebook post made by O’Connor-Ratcliff on May 24, 2015. Below the post, Kimberly || Garnier posted a comment containing video link. Christopher Garnier also posted a ||comment containing a link. & Michelle O\honner-Ratetitt 1 0 in a 4 Sa a i is iS : a : we High School band and orchestra members present “Introduction to Instruments.” Sponsored Sy the Poway Genbar for the Performing Arts I] (dence seh ac ah Nero mt raed i ey enter Sth grade. 12 ey yar io Your aif Woot you rac Ae next phato shows the Wilestdew band domoing the irambons and other brass instruments as they played “Th Trombones: from The Music hlan 1 3 H was fabuloust Vee <3 "ag 15 aE a as 16 17 [| JJ o_—_ | ‘TS i 19 os ek re ie Fj : os a4 | Teas 3 20 = ore are — 21 ee 2? Like Cosmmentt Share ¢ 23 © (vies gf Kam Garnier 24 ee onary 25 ae Punished for Reporting it 26 & Christopher Garnine 27 & iA Re they get the chance io expanence 28 || Defs.’ Ex. U, 10. Plaintiffs’ comments are light in color because O’Connor-Ratcliff “hid” those comments on her page, discussed further below. Scrolling past these video link comments is quick and straightforward. Zane testified that because of this truncation as well as Facebook’s other features designed to streamline a page’s appearance, even repeated comments only had “a net effect of slightly pushing down anything that I would have put up there.” Trial Tr., ECF No. 80, 133:15-17. Scrolling past even numerous, repeated comments or links to videos would take minimal time due to Facebook’s truncation of comments. Id. at 94:22. As quickly as the user can click his finger, he can disregard the truncated comments. Id. at 109:9-10. Any Facebook user may comment on a post on a public page such as those used by Defendants. Id. at 115:20. The comment does not necessarily relate to the original post. Id. at 81:14-20. When a person comments, the page administrator for that page may leave a comment visible to other Facebook users. Id. at 120:4-19. The page administrator can also delete a comment, removing it entirely from appearing beneath the post, or “hide” the comment. Id. The “hide” feature allows a page administrator to make comments on posts invisible to other viewers. Id. The only people who can view a comment that has been hidden are the page administrator and the person who posted the hidden comment. Id. Another Facebook user viewing a post would not see any hidden comments. Id. at 121:1-5. In addition to deleting or hiding individual comments, Facebook also allows page administrators to block people from posting on their page. While users generally may respond to a post with a comment—whether germane or not to the post—or by making a non-verbal reaction, such as by “liking” a post or give a “thumbs up” emoticon, a blocked user cannot comment or make a non-verbal reaction. See, e.g., Trial Tr., ECF No. 80, ECF No. 80, 186:8-188:2; Pls.’ Ex. ^[3], 2 (showing “thumbs up” and smiley-face emoticons to the left of “16” reactions). Instead, a blocked user can only view the public Facebook page. Id. On Twitter, the equivalent of an original post is called a “tweet.” A Twitter user’s || tweets are displayed on a “feed,” similar to how a Facebook user’s posts are displayed on ||her page. The pictures below depict the top of O’Connor-Ratcliff’s Twitter feed as of || October 26, 2017. As can be seen, when viewing a user’s feed, replies to the user’s ||tweets are not visible. Instead, a user must click on a specific tweet to view replies to that ||tweet. Thus, a user’s ability to “disrupt” another user’s Twitter feed—the page she || wishes to display to other users—is minimal because replies are only visible when || clicking on a particular tweet.

i a 10 3 a Tweets Followin Foil Lees 11 | 296 «131,106. 4,217 (Fallow 12 M. O'Connor-Ratcliff Tweets Tweets&replies Media @MOREPLED M. O'Conner-Ratcliff @MOR4PUSD - Oct 24 ~~ 1B mmcenieitnaianioeia | Q FB Joined May 2026 Ne ; 14 Ea 15 Photos and videos alte Loa B Ee “Fs eo ioe i Mila 16 Seat nen ine ‘“a- : i i = “Bie Fas Y 17 ———— ee ak Gz 18 New to Twitter? ae Sign up now i oF your 19 percnalined timeinel All Holey iy O i 6 20 M. O'Connar-Rateliff @MORAPUSD - Cet 20 vw & Jack-O-Smash (jack-o-smashlorg) is 1 week away! Sign up to support PUSD Worldwide trends SpEd Foundation and Abraxas Transition! 1 SK. LOK & rare! : __ T2349 Melvers Ct. Poway, OA 2004 —. 21 gl cule = Tar #NationalPumpkinDay SO.2K Tweets 23 eal pl dle 54 a. Bi WE Wi FESTIVAL Televisa Rare 7:30 AM « Rarndhy Fenbivel FTW) dA Hn dk Paladin Santali Gama E00 AMA 2 5 125 26 27 28 1 TO2B2017 MM. OfConnor-Rateltl (GMORAPUSD) | Tatttier Fak Tweets si igh natal mea A ei = Seen ei ae oe Sa 2 tne Aco VEV-VeV-VEV-Vey soe Giese piin Tretaachie ae 3 487k Teeets 0=een—i B-AS alas eS = * Awards. sand much 4 = VEVEVIVEV EWEN? -VEVTVGVTY 5 eh if] aes ee ee ae ae eel POL? Twitter About Help Center Terms ieee cee eM MEE melody 6 Privacy policy Cookies Ads info _Formore information, visit Oo i 1 7 O'Connor-Raiclitt Reteeeted a, Poway Unified @PowayUnified - Oct 16 fh) #PowayUnified District Office staff excited about @CHARACTERCOUNTS Be 8 “eae @iredibbonweek, Kicking it off by wearing read. @characterounisweek ca = 9 mM Ft ab Sa Pop y tly ae 10 ea be 4 SUE See Ne eR 34g ee I] A ey ee LS ag ee Oe ee 12 te ee ei ee a oe ee a ee hl 4 ed ial a rs 13 al i A 14 — Marian Kin-Pralps, Kimberie Rene Sennifer Burics and 4 others 15 O23 Oe 37 M. O'Conner-Ratcdiff @MOR4PUSD - Oct 13 we 16 & Scenes from Westview HS Homecoming pep rally today. tn Th pies wea i a ae Coe Cc ri Py >" og Neh 18 iS Be Ty A pam? * he 7a 20 4 ye Oe FP 21 ty ae fe a SCOminc is) feeds 2 ts ay eet 23 24 || Pls.’ Ex. ^[5], 1-2. 25 On Twitter, a user may also block another user. Blocking prevents the blocked 26 |/user from seeing the blocker’s Twitter feed and replying to the blocker’s tweets. In other 27 || words, the blocked user cannot see any of the content posted by the blocker while logged 28 ||into his Twitter account or interact with the blocker on the site.

E. Plaintiffs’ Interactions with Defendants’ Pages and Accounts Christopher Garnier began posting on Defendants’ Facebook pages when he || believed they were not satisfactorily responding to his emails and other communications. || Trial Tr., ECF No. 80, 37:14-18. None of Plaintiffs’ comments used profanity or || threatened physical harm, and almost all related to PUSD. Jd. at 39:1-9. Plaintiffs’ comments were not commercial in nature. /d. at 39:11. However, Plaintiffs acknowledged their posts were often repetitious. Jd. at 41:4; || 100-103. On Facebook, Christopher Garnier made the same comment on forty-two posts ||made by O’Connor-Ratcliff. Jd. at 180:16. On another occasion, Christopher Garnier || posted the same reply to every tweet O’Connor-Ratcliff posted within approximately ten |}minutes. /d. at 176:18. This involved repeating the same reply 226 times. Jd. As || discussed above, these replies would only be visible by (1) visiting Christopher Garnier’s || Twitter feed or (2) clicking on a tweet on O’Connor-Ratcliff’s feed to which Christopher || Garnier replied. For example, looking at O’Connor-Ratcliff’s Twitter feed, the following tweet appears from October 13, 2017. & M. OConnor-Rateliff @MOa4PUSD 13 Amazing speed painting dermenstration as part of Weaview HS Homecoming 17 pep rally! 45 mins of teamwork wf PLSD TOY Mr, Opstad.

19 of = ie ‘ 20 2 ee ad - I Fiat i Sain ae \ aie 22 yy aes i ee me st, or 23 mh 24 ae : ED oor 25 i fe Vs 26 Oa ta 11 27 28 || Pls.’ Ex. ^[5],3. A user can see that there is one reply to this tweet, indicated by the “1” next to the cartoon dialogue icon, but cannot see that reply on O’Connor-Ratcliff’s feed. Moreover, not all of Plaintiffs’ comments were the same. O’Connor-Ratcliff’s documentary evidence shows Christopher Garnier posting more than 20 unique comments and Kimberly Garnier posting more than 15 unique comments in response to O’Connor-Ratcliff’s original Facebook posts. See Defs.’ Ex. U, 25-130. Plaintiffs testified they repeated comments because they wanted to reach other Facebook users who might only look at one particular post made by Defendants. Trial Tr., ECF No. 80, 107:2-7. By repeating their message on each post, Plaintiffs reasoned, they would raise the issues that mattered to them involving PUSD to a broader audience. Id. at 102:17- 103:11. Assessing the full scope of these comments’ disruption is difficult because Zane deleted some of Plaintiffs’ comments on his Facebook page while O’Connor-Ratcliff “hid” or deleted others. In addition, the Parties’ exhibits generally show the pages as they appeared in 2017 when the suit was filed. More recent screenshots were not submitted in evidence. Nonetheless, Zane testified that deleting comments was not onerous and that he did so to ensure his Facebook page had a “streamlined” appearance. Id. at 133:13-21. On some of O’Connor-Ratcliff’s Facebook posts, she “hid” Plaintiffs’ comments and still replied to comments made by other members of the public. See, e.g., Defs.’ Ex. “U,” 26, 28, 30 and 32; and Trial Tr., ECF No. 80 189:24-190:12. F. Use of Word Filters In general, Facebook allows a page administrator to block a particular user from commenting on his page but does not allow a page administrator to entirely block comments from all other Facebook users. Though not addressed extensively at trial, the reasoning for Facebook’s policy is intuitive: Facebook is a social media platform, not a website designed for the one-way presentation of information to a reader. It seeks interaction between users, not just dissemination of content to a recipient. However, after this suit was filed, Facebook created a new feature that allows a page administrator to use word filters. Word filters are designed to allow a page administrator to moderate potentially offensive content on their page. If a page administrator adds a word to the filter, a comment including that word will not appear as a comment on any post. Trial Tr., ECF No. 80, 116:1-15. Zane began using word filters on his page in December 2018. Zane testified that his intent is not to limit only potentially offensive content. Id. Instead, he seeks to preclude all comments on his public page. Id. To accomplish this intent, he added more than 2,000 words to his word filter. Id. The words include basic words likely to appear in any comment, such as “he, she, it, [and] that,” to ensure all comments are filtered out from his page. Id. O’Connor-Ratcliff has also adopted word filters, though uses a much smaller set of words. Id. at 160:24-25. Her intent, likewise, is now to eliminate all comments and use her public Facebook page as a “bulletin board.” Id. at 168:16. G. Blocking Christopher Garnier testified that in October 2017, he was blocked from posting on Zane’s public Facebook page and remains so blocked today. Id. at 45:4; 56:1-2. Zane denies this, stating he never blocked Christopher Garnier on his public Facebook page – only on his personal and business pages. Id. at 117:7. Zane also testified that he has deleted specific comments and used word filters, discussed above, attempting to prevent all Facebook users from commenting on his posts. Id. at 117:8-20. He stated that as Facebook’s features have evolved, his use of the platform evolved as well. He now tries to prevent any comments on his page by using an extensive word filter instead of deleting individual comments. Id. at 117:19-25. The Parties did not address whether blocking an individual from one page automatically blocks that same person from other pages run by the same page administrator, but this could likely be the case here. Christopher Garnier and Zane offered directly conflicting testimony. While dated, the documentary evidence supports the conclusion that Zane blocked Christopher Garnier from his public Facebook page. Christopher Garnier appears unable to comment on any post made by Zane on his page, see Pls.’ Ex. 15, which is consistent with what a blocked user would experience on a Facebook page. Accordingly, the Court finds that although Zane may not have acted with the intent to block Christopher Garnier, the result of his action is that he has blocked and continues to block Christopher Garnier on Facebook. With respect to Kimberly Garnier, the evidence is different. Kimberly Garnier testified that at the time she filed suit, Zane blocked her from posting on his Facebook page. Trial Tr., ECF No. 80, 88:17-18. Kimberly Garnier testified, however, that only days before trial Zane appeared to unblock her from his Facebook page. Id. at 92:10-11. As discussed above, Zane denies he blocked anyone from his public Facebook page. Id. at 117:7. Where there is no dispute, the Court readily finds Zane is not currently blocking Kimberly Garnier on Facebook. Plaintiffs do not allege Zane has ever blocked either of them on Twitter. As such, the Court makes no finding in this regard. The evidence regarding O’Connor-Ratcliff is much clearer. O’Connor-Ratcliff reported Plaintiffs’ comments on her page to Facebook on two occasions. Id. at 175:2-4. A representative from Facebook informed O’Connor-Ratcliff that they were looking into the matter, but Facebook did not end up taking any action against Plaintiffs. The representative also recommended O’Connor-Ratcliff block Plaintiffs on the platform, which she did. Id. at 175:5-6. O’Connor-Ratcliff has also blocked Christopher Garnier on Twitter. Id. at 193:25. She has not unblocked either Christopher Garnier or Kimberly Garnier on those platforms. Id. at 45:11; 155:11. H. Rationale Zane testified the content of Christopher Garnier’s posts were “not particularly” of any concern to him. Id. at 132:25; 133:1-7. Instead, Zane’s issue with Plaintiffs’ posts on his social media page was the alleged disruption and “spamming” nature of the comments, which went against Zane’s intent to have the page “just be very streamlined” in a “bulletin board nature.” Id. at 133:11-12. Zane stated he never understood Christopher Garnier’s decision to repeat comments beneath each post Zane made. Id. at 137:23-25. He testified that a comment repeated below each post “wasn’t what I wanted for the page, so that’s why I chose the settings that I did.” Id. at 138:1-2. Likewise, O’Connor-Ratcliff testified her reason for blocking Plaintiffs on her Facebook page and Christopher Garnier on Twitter was the repetition, not content, of his posts. Id. at 180:20. She testified that she has received negative comments from other members of the public on her Facebook page but has not blocked them. Id. at 194:23- 195:6. The record also reflects O’Connor-Ratcliff frequently responded to positive comments on her page with “thumbs-up” reactions and responses such as “Thank you for the kind words,” id. at 186:8-188:22, but does not show evidence that Plaintiffs were blocked due to the content (vice repetition) of their comments. III. CONCLUSIONS OF LAW Plaintiffs’ federal claim arises out of 42 U.S.C. § 1983, pursuant to which “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.” 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must allege: (1) the violation of a right secured by the Constitution and laws of the United States; and (2) that the alleged deprivation was committed by a person acting under color of state law. Id.; see also West v. Atkins, 487 U.S. 42, 48 (1988); Belgau v. Inslee, 975 F.3d 940 (9th Cir. 2020). “Section 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a method for vindicating federal rights elsewhere conferred.’” Albright v. Oliver, 510 U.S. 266, 271 (1994). As discussed below, this Court concludes that Plaintiffs have demonstrated the requisite elements for a Section 1983 claim, namely: (1) state action, as was determined prior to trial, see Order, ECF No. 42; and (2) deprivation of a constitutional right. Before turning to the claim, however, the Court briefly addresses standing. A. Plaintiffs have Standing for their claims While the Parties’ briefs assume Defendants blocked Plaintiffs on Facebook and O’Connor-Ratcliff blocked Christopher Garnier on Twitter, the evidence presented at trial requires the Court to closely examine this issue. The jurisdiction of federal courts is limited by Article III, § 2, of the Constitution to “Cases” or “Controversies. Arizonans, 520 U.S. at 64. This requires a litigant to show “an invasion of a legally protected interest” that is “concrete and particularized,” as well as “actual or imminent.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal quotations omitted). “To qualify as a case fit for federal-court adjudication, ‘an actual controversy must be extant at all stages of review, not merely at the time the complaint was filed.’” Arizonans, 520 U.S. at 67 (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). However, “[i]t is undisputed that as a general rule voluntary cessation of challenged conduct moots a case . . . only if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Carlson v. United Academics – AAUP/AFT/APEA AFL-CIO, 265 F.3d 778, 786 (9th Cir. 2001) (internal quotations omitted). Here, Plaintiffs seek declaratory and injunctive relief against Defendants. Compl., ECF No. 1. An injunction issued by this Court would require Defendants to unblock Plaintiffs on Facebook and would require O’Connor-Ratcliff to unblock Christopher Garnier on Twitter. However, there is evidence that Zane unblocked Kimberly Garnier on Facebook shortly before trial. Accordingly, the general rule would suggest that Kimberly Garnier’s claims for injunctive and declaratory relief against Zane are moot. See Arizonans, 520 U.S. at 67; see also Wagschal v. Skoufis, 442 F. Supp. 3d 612, 622 (S.D.N.Y. 2020) (finding plaintiff’s claim for declaratory and injunctive relief mooted because defendant state senator unblocked plaintiff) and McKercher, 2019 WL 1098935, at *3 (dismissing claims as moot where defendant added plaintiff on Facebook as a friend during the pendency of litigation, allowing plaintiff to post on defendant’s Facebook page). Nonetheless, because Zane unblocked Kimberly Garnier only days before trial, the Court finds it is not absolutely clear that Zane could not block Kimberly Garnier again. See Carlson, 265 F.3d at 786. Accordingly, the Court concludes Kimberly Garnier has standing for her claims against Zane. As discussed above, the Court finds that both Defendants blocked and continue to block Christopher Garnier on Facebook, that O’Connor-Ratcliff blocked and continues to block Christopher Garnier on Twitter, and that O’Connor-Ratcliff blocked and continues to block Kimberly Garnier on Facebook. These claims therefore involve an actual controversy and the Court’s analysis on these alleged Section 1983 violations proceeds below. B. Defendants’ Conduct Constitutes State Action First, although not alleged in the complaint, Plaintiffs have filed suit against Defendants on the basis that their actions qualify as state action. Judge Whelan’s order on Defendants’ motion for summary judgment already concluded that Defendants acted under color of state law, satisfying the first element for a Section 1983 action. See generally ECF No. 42. Despite Judge Whelan’s ruling, Defendants noted at the beginning of trial that this case involved a question of “whether there was state action.” Trial Tr., ECF No. 80, 13:8-12. Although recognizing that Judge Whelan had found state action when denying their motion for summary judgment, they intended to present evidence on that issue to preserve the record for appeal. Id. At the conclusion of trial, the Court stated that it recognized a difference between this case and the Knight and Morgan cases, both of which involved an executive, because unlike the legislators here who have regular meetings at which the public can appear and provide comment, the executives in Knight and Morgan lacked such a forum. Id. at 199:7-11. The Court noted that in this case, Plaintiffs could come into a Board meeting and “express the very same views . . . that they could . . . on Facebook or Twitter.” Id. at 199:1-6. As a result, the Court asked the Parties to address whether the fact that Defendants’ actions were taken outside of a meeting could preclude those actions from being considered state action sufficient to allow a Section 1983 action to proceed. Plaintiffs argue that Defendants’ status as legislators vice executive branch officials does not change the analysis of whether Defendants acted under color of state law in blocking Plaintiffs. Pls.’ Br., ECF No. 86, 9-11. Plaintiffs urge the Court to adopt a “totality of the circumstances” test for determining state action, citing the Fourth Circuit’s decision in Davison. Id. (citing 912 F.3d 666). Defendants argue extensively that they did not act under color of state law because they are members of the legislative branch and cannot take official action outside of a meeting of their legislative body. Defs.’ Br., ECF No. 84, 13-15 (citing Cal. Gov’t Code § 54950 et seq.). On these grounds, they attempt to distinguish other cases that have found similar conduct to violate the First Amendment. Id. at 14. As stated above, the Court adopts the reasoning and conclusions articulated by Judge Whelan in his order on Defendants’ motion for summary judgment that “[t]he content of [Defendants’] posts, considered in totality, went beyond their policy preferences or information about their campaigns for reelection.” ECF No. 42 at 14:2-4. Because Defendants “could not have used their social media pages in the way they did but for their positions on PUSD’s Board, their blocking of [Plaintiffs] satisfies the state- action requirement for a section 1983 claim.” Id. at 14. Further, “the content of many of their posts was possible because they were ‘clothed with the authority of state law.’” Id. (citing Davison, 912 F.3d at 679). Finally, other recent cases addressing blocking on social media have found legislators to be acting under color of state law in making blocking decisions. See, e.g., Davison, 912 F.3d at 680 (county board chair); Campbell, 367 F. Supp. 3d at 994 (state representative); and Felts v. Reed, Case No. 20-cv-821- JAR, 2020 WL 7041809, at *6 (E.D. Mo. Dec. ^[1], 2020) (municipal alderman). For these reasons, the Court concludes Defendants acted under color of state law despite Defendants’ positions as legislators, not executives. C. Deprivation of a Constitutional Right Under the First Amendment Second, Plaintiffs argue that they suffered a deprivation of a constitutional right in the form of a violation of their First Amendment rights to free speech. First Amendment cases involving social media address many issues. Some of these issues have already been addressed by Judge Whelan’s order on Defendants’ motion for summary judgment, including but not limited to his conclusions that: (1) Plaintiffs have standing to bring their claims; (2) Defendants are entitled to qualified immunity; and (3) Defendants’ accounts are designated public forums. ECF No. 42. As noted, the Court adopts those conclusions here.^[3] Other potentially relevant issues, such as whether a plaintiff can require a defendant to listen to their speech—she cannot, see Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984) (a plaintiff has “no constitutional right to force the government to listen to their views”)—are addressed by other cases but have not been raised on the facts here.^[4] Instead, this dispute addresses an apparent issue of first impression in the digital domain: whether Plaintiffs’ repetitive comments and replies on Defendants’ social media pages actually disrupted Defendants’ original posts, making Defendants’ blocking a reasonable time, place, or manner restriction on Plaintiffs’ speech. As outlined below, the Court concludes that while the blocking was content-neutral, Defendants’ continued blocking constitutes a burden on speech that is no longer narrowly tailored to serve a substantial government interest.