The Supreme Court is weighing when officials can block citizens on social media

The Supreme Court worked hard in a few arguments Tuesday to find a clear constitutional line separating the purely private social media accounts of elected officials from those that reflect government actions and are subject to the First Amendment. After three hours, however, it was not clear that a majority of the judges had reached a clear test.

The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer hinged on whether the officials’ use of the accounts amounted to “state action,” which is covered by the First Amendment, or private activity, which is not.

That same question seemed to go to the Supreme Court after the federal appeals court in New York reigned in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he had no power to exclude people based on their views.

If the account had been private, the court said, Trump could have blocked whoever he wanted. But because he used the account as a government official, he was covered by the First Amendment.

After Mr. Trump lost the 2020 election, the Supreme Court acted overturned the court of appeal’s ruling as questionable.

Justice Elena Kagan said Tuesday that Trump’s Twitter feed was official in an important sense and therefore subject to the First Amendment.

“I don’t think any citizen could really understand the Trump presidency, if you will, without some access to all the things the president has said around it,” Judge Kagan said. “It was an important part of the way he exercised his authority. And when you cut a citizen off from that, you cut a citizen off from part of the way government works.”

Hashim M. Mooppan, an attorney for two school board officials, said none of this was related to the First Amendment.

“President Trump could have done the same thing from Mar-a-Lago or a campaign rally,” Mooppan said. “If he gave all those speeches in his personal home, somehow his home wouldn’t be turned into state property.”

The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on whether states can ban major social media companies from removing posts based on the views they express, and on whether Biden administration officials can contact social media platforms to combat what they believe is disinformation.

The first case filed Tuesday involved the Facebook and Twitter accounts of two members of California’s Poway Unified School District, Michelle O’Connor-Ratcliff and TJ Zane. They used the accounts, created during their campaigns, to communicate with their constituents about the school board’s activities, inviting them to public meetings, soliciting comments on the board’s activities and discussing school safety issues.

Two parents, Christopher and Kimberly Garnier, regularly posted long and repetitive critical comments, and officials eventually blocked them. The parents filed a lawsuit and lower courts ruled in their favor.

“When state actors enter that virtual world and invoke their governmental status to create a forum for such expression, the First Amendment steps in with them.” Judge Marsha S. Berzon prescribed a unanimous panel of three judges of the United States Court of Appeals for the Ninth Circuit in San Francisco.

Mr Mooppan said the accounts were personal and were created and maintained without any intervention from the district.

Judge Brett M. Kavanaugh pressed Mr. Mooppan on what it would take to make the bills official and thus fall under the First Amendment. “Is announcing rules state action?” the judge asked.

Mr Mooppan said this would be the case if the announcement was not available elsewhere. To a question about reports of school closures, he gave a more ambiguous answer. But he said a reminder of general public safety was not a state action.

Pamela S. Karlan, an attorney for the parents, said Ms. O’Connor-Ratcliff’s Facebook feed was almost entirely official. “Out of hundreds of posts, I only found three that really had nothing to do with work,” Ms. Karlan said, adding, “I challenge anyone to look at it and think this wasn’t an official website.”

The second case, Lindke v. Freed, No. 22-611, involved a Facebook account operated by James R. Freed, the city manager of Port Huron, Michigan. He used it to comment on a variety of topics, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.

The messages prompted critical responses from one resident, Kevin Lindke, who ultimately blocked Mr. Freed. Mr. Lindke sued and lost. Judge Amul R. Thaparto write for a unanimous panel of three judges of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said that Mr. Freed’s Facebook account was personal, meaning the First Amendment was not a factor.

“Freed has not used his page to discharge any actual or apparent duty of his office,” Judge Thapar wrote. “And he didn’t use his governmental authority to maintain it. So he was acting in his personal capacity – and there was no state action.”

Judge Kagan told Allon Kedem, a lawyer for Mr. Lindke, that Mr. Freed’s page did not look particularly official.

“There are a lot of baby pictures and dog pictures and obviously personal things,” she said. “And related to that, as you say, there is communication with voters on important issues. But it is difficult to look at this page as a whole, unlike the one in the last case, and not think that this cannot be the official communication channel after all.”