When can government officials block individuals on their social media accounts? The United States Supreme Court considered that question at an Oct. 31 hearing.
The court’s eventual ruling on the high-profile controversy, which involves two contradictory rulings by lower courts, is likely to have an impact on all levels of government as citizens increasingly use social media to interact with public officials.
Later this term, the court will hear challenges to laws in Florida and Texas that regulate how social media companies moderate content on their platforms. The cases pit the right of individual Americans to freely express themselves online against the right of social media platforms to make editorial decisions about the content they host. Lawyers say both rights are protected by the First Amendment to the U.S. Constitution.
The Florida case is Moody v. NetChoice LLC (court file 22-277). The Texas case is NetChoice LLC v. Paxton (court file 22-555).
The hearing brings to mind a lawsuit that several individuals previously filed against former President Donald Trump after he blocked them from accessing his Twitter account. The Supreme Court dismissed that case, Biden v. Knight First Amendment Institute, in April 2021 as moot because President Trump had already left office.
At the time of the ruling, Twitter had banned President Trump. When Elon Musk took over the company he reversed that policy.
Two cases—O’Connor-Ratcliff v. Garnier (court file 22-324) and a related case, Lindke v. Freed (court file 22-611)—were heard back-to-back on Oct. 31 by the Supreme Court.
The legal issue is whether a public official is engaging in state or governmental action subject to the First Amendment to the U.S. Constitution when blocking someone from accessing the official’s social media account.
One federal appeals court found in favor of the citizens; another found for the public official.
Spamming Alleged
Respondents Christopher Garnier and Kimberly Garnier, parents of local students, “spammed Petitioners’ posts and tweets with repetitive comments and replies” so the school board members blocked the respondents from the accounts, according to the petition filed by Ms. O’Connor-Ratcliff and Mr. Zane.But the Garniers said they were acting in good faith.
“The Garniers left comments exposing financial mismanagement by the former superintendent as well as incidents of racism,” the couple said in a brief.
The U.S. Court of Appeals for the 9th Circuit found in favor of the Garniers, holding that elected officials using social media accounts were participating in a public forum.
In the other case, respondent James Freed, the city manager of Port Huron, Michigan, used a public Facebook account to communicate with his constituents. Petitioner Kevin Lindke, a resident of Port Huron, criticized the municipality’s response to the COVID-19 pandemic, including accusations of hypocrisy by local officials.
Mr. Freed blocked Mr. Lindke and others and removed their comments, according to Mr. Lindke’s petition.
The U.S. Court of Appeals for the 6th Circuit ruled for Mr. Freed, finding that he was acting only in a personal capacity and that his activities did not constitute governmental action.
Representing Ms. O’Connor-Ratcliff and Mr. Zane, attorney Hashim Mooppan addressed the justices.
“Individuals who hold public office are still private citizens too,” he said.
Can Critics Be Blocked?
Justice Samuel Alito pushed back.Does this mean that a “town manager can block comments based on viewpoint, so the town manager can block anybody who expresses criticism of what the town manager is doing and thereby create the impression that everybody in town thinks the town manager is doing the right thing?” the justice said.
Justice Elena Kagan also questioned Mr. Mooppan’s reasoning,
“President Trump’s Twitter account was also personal?” Justice Kagan asked.
“Yes, Your Honor, then I think that he is engaging in his First Amendment rights … to talk about the government in his individual capacity,” Mr. Mooppan said.
“But he seems to be doing, you know, a lot of government on his Twitter account,” Justice Kagan replied.
Justice Brett Kavanaugh said: “local officials around the country need guidance. … They need a clear answer” about how to communicate with the public.
Supporting Ms. O’Connor-Ratcliff and Mr. Zane, U.S. Department of Justice attorney Sopan Joshi told the court that social media accounts operated in a personal capacity function as private property.
“If the defendant denies access to government property, [there is] probably state action. If the defendant denies access to her own personal property, she’s probably acting in her capacity as a private property owner, not as an agent of the state,” Mr. Joshi said.
Attorney Pamela Karlan said it was clear that the school board trustees were acting in a governmental capacity.
The U.S. district court found that “receiving feedback from constituents is an important part of their duties as trustees.” The social media pages were “used as a tool of governance,” the court held, she said.
“Because the trustees were doing their job when they maintained and then blocked Dr. and Mrs. Garnier from these pages, this case fits comfortably within this Court’s declaration in [two previous precedents] that state employment is generally sufficient to render the defendant a state actor.”
Attorney Allon Kedem said Mr. Freed was wrong to block Mr. Lindke.
“The dialogue between public officials and their constituents is fundamental to our democracy,” the lawyer for Mr. Lindke told the justices.
“Much of that conversation now takes place online, with social media platforms serving as the new town square, where public officials provide important information about what they’re doing on the public’s behalf and soliciting comments in return.”
He acknowledged that public officials still have First Amendment rights, but said the “use of a private social media account does not immunize an official’s conduct from First Amendment or constitutional scrutiny.”
When a public official “creates a channel for communicating with constituents about in-office conduct and then blocks a user from that channel, [he] must abide by the Constitution.”
Mr. Freed’s attorney, Victoria Ferres, said her client doesn’t give up his rights when he uses social media.
“This country’s 21 million government employees should have the right to talk publicly about their jobs on personal social media accounts like their private-sector counterparts.”
The position advocated by the other side would unfairly punish government officials, and “will result in uncertainty and self-censorship for this country’s government employees despite this Court repeatedly finding that government employees do not lose their rights merely by virtue of public employment,” she said.
After the hearing, Ms. Ferres said oral arguments went “as good as I could expect.”
“There has to be some objective indicia that the government employees can reply upon so they know when they’re using government resources … that they’re acting on behalf of the state.
“Otherwise … Mr. Freed … [is] just not going to speak at all because he doesn’t want to be tied up in a hundred lawsuits because he keeps blocking people who say creepy things or deleting comments even when he’s posting pictures of his dog,” she told The Epoch Times in an interview outside the courthouse.
“We want government employees to talk. They’re the most knowledgeable … we want that speech. So if we’re telling them that every time they share something it’s state action, they’re never going to talk and we’re not going to know a lot about the government, which is not what the First Amendment was designed to protect against.”
