Appeals court says supervisor can block critic on X
San Francisco Supervisor Dean Preston was legally entitled to block conservative journalist Susan Dyer Reynolds from his Twitter account, where she had repeatedly criticized him, a federal appeals court ruled Monday.
Recent Supreme Court decisions on public officials’ use of social media platforms support Preston’s argument that he was speaking for himself, not the city, when he blocked Reynolds’ publication, the Marina Times, from access to his online account in 2020, said the 9th U.S. Circuit Court of Appeals in San Francisco.
The court did not say whether Reynolds might have been able to show that her rights were violated. But with no “clearly established law” demonstrating that Preston was acting illegally as a public official, her suit against him must be permanently dismissed, the threejudge panel said.
The judges, Lucy Koh, Holly Thomas and Roopali Desai, were all appointed by President Joe Biden.
Preston was first elected in 2019 as supervisor for District 5, which includes portions of the city’s Panhandle, Haight-Ashbury, Western Addition and Tenderloin neighborhoods.
A self-described democratic socialist, he is seeking another term in November and faces opposition from centrist candidates who include entrepreneur Bilal Mahmood and Autumn Looijen, a leader in the February 2022 recall of three left-leaning school board members.
In a December 2022 lawsuit, Reynolds accused Preston of violating her First Amendment rights by blocking the Marina Times from the Twitter account he maintained to communicate with constituents. Her lawyers said Preston was acting out of anger at Reynolds’ criticism of his policies, including his advocacy of cuts in funding to police and prisons.
Preston said he acted not because of personal criticism, but because the Marina Times “tweeted a threat of physical harm to my family.”
He was referring to Reynolds’ June 2020 Twitter postings that asked him, “Do you have a child?” and added, “Hope he doesn’t let them out at night by themselves after he gets rid of the entire SFPD and abolishes prisons.” She punctuated the latter tweet with the hashtag #PrestonsPurge, which Preston said was a threat to his family.
U.S. District Judge William Orrick III refused to dismiss Reynolds’ suit. But the appeals court said the Supreme Court changed the legal standards with its ruling in March.
In a unanimous decision, Justice Amy Coney Barrett said public officials, while bound by the First Amendment when acting on behalf of the government, “are also private citizens with their own constitutional rights,” including free speech.
They are speaking for the government, she said, only when they are making official announcements authorized by law, or when they have indicated they were speaking as an official “and have been recognized to have that authority.”
Reynolds’ lawyers argued that Preston’s conduct should be judged by the legal standards in effect when she sued him. In any event, they said, the supervisor was using his online platform “to bring attention to his legislative initiatives; advocate for his preferred public policies; criticize citizens, policies, elected officials, and dissenting views; engage in online and in-person organizing in connection with his political agenda.”
The city attorney’s office, representing Preston, countered that the supervisor had made it clear on the Twitter account, which he suspended last year, that “the views expressed were his own.” And the appeals court said the legal standard cited in Reynolds’ suit had been revoked by the Supreme Court’s ruling.
Preston welcomed Monday’s ruling. “Reynolds attempted to incite violence against my family,” he said in a statement, and “I’m grateful that the appellate court followed the law and directed the dismissal of this frivolous case.”
Jesse Franklin-Murdock, a lawyer for Reynolds, said he disagreed with the court’s decision to dismiss the case.