The Supreme Court sets rules for blocking citizens from public officials’ accounts
The Supreme Court has in a a few unanimous decisions added some clarity Friday to a tricky constitutional puzzle: how to decide when elected officials violate the First Amendment by denying people access to their social media accounts.
Judge Amy Coney Barrett, writing for the court in the main case, said two things are necessary before officials can be sued by people they blocked. The officials must have had the authority to speak on behalf of the government on the issues they raised on their sites, she wrote, and they must have exercised that authority in the relevant posts.
The court did not apply the new standard to the cases before it, involving a city manager in Port Huron, Michigan, and two members of a California school board. Instead, it sent the cases back to lower courts to complete that task.
The cases were the first of several this period in which the Supreme Court is examining how the First Amendment applies to social media. The court heard arguments last month on whether states can ban major tech platforms from removing posts based on the views they express, and it will consider on Monday whether Biden administration officials can contact social media platforms to combat what according to them is disinformation.
Friday’s cases were less significant than the others, and the caution of the two rulings showed the difficulty of applying old doctrines to new technology.
In both cases, the question was whether the officials’ use of the accounts amounted to state action, which is covered by the First Amendment, or private activity, which is not.
The matter involving the city manager, Lindke v. Freed, No. 22-611, involved James R. Freed’s public Facebook page, which he used to comment on a variety of topics, some personal and some official.
Judge Barrett described the mixed messages on Mr. Freed’s page. “For his profile photo, Freed chose a photo of himself in a suit with a city lapel pin,” she wrote. “In the ‘About’ section, Freed added his title, a link to the city’s website and the city’s general email address. He described himself as “Dad to Lucy, husband to Jessie and city manager, chief administrative officer for the residents of Port Huron, Michigan.”
Mr. Freed, the judge wrote, “posted a lot (and mostly) about his personal life.” But he also posted information about his work.
“He shared news of the city’s efforts to streamline leaf intake and stabilize water intake from a local river,” Judge Barrett wrote. “He highlighted communications from other city officials, such as a press release from the fire chief and an annual financial report from the finance department. Occasionally, Freed would solicit feedback from the audience – for example, he once posted a link to a city survey on housing and encouraged his audience to complete it.
During the coronavirus pandemic, Mr. Freed wrote about the city’s response. These posts led to critical comments 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 Barrett wrote that “the question is a difficult one, especially in a case involving a state or local official who routinely interacts with the public.”
“The distinction between private behavior and state action,” she added, “arises from the substance, not from the label: private parties can act with the authority of the state, and state officials have private lives and their own constitutional rights.” Categorizing behavior may therefore require further consideration.”
The Supreme Court’s handling of the second case, in an unsigned three-page opinion, was even more cryptic. The case was sent back to the lower courts for reconsideration in light of the case involving Mr. Freed.
That case, O’Connor-Ratcliff v. Garnier, No. 22-324, involved the Facebook and Twitter accounts of two members of the Poway Unified School District in California, 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.
“We have no doubt that social media will continue to play an essential role in organizing public debate and facilitating the free expression that is at the heart of the First Amendment.” 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. “When state actors enter that virtual world and invoke their governmental status to create a forum for such expression, the First Amendment kicks in with them.”