The Supreme Court, in two unanimous decisions Friday, added some clarity to a vexing constitutional puzzle: how to decide when elected officials violate the First Amendment by blocking people from their social media accounts.
Judge Amy Coney Barrett, writing for the court in the main case, said two things are required before officials can be sued by people who have blocked them. Officials must have been authorized to speak for the government on the issues they addressed on their websites, he wrote, and must have used that authority in those posts.
The court did not apply the new standard to the cases before it, which involved a city manager in Port Huron, Mich., and two school board members in California. Instead, it returned cases to the lower courts to perform that duty.
The cases were the first of many this term in which the Supreme Court examines how the First Amendment applies to social media. The court heard arguments last month about whether states can bar major tech platforms from removing posts based on the views they express, and will consider Monday whether Biden administration officials can contact social media platforms to fight what they say is misinformation.
The cases on Friday were less important than the others, and the test of the two decisions demonstrated the difficulty of applying old doctrines to new technology.
In both cases, the question was whether the employees’ use of the accounts amounted to governmental action, which is governed by the First Amendment, or private activity, which is not.
In the matter of the city manager, Lindke v. Freed, No. 22-611, involved James R. Freed’s public Facebook page, which he used to comment on various matters, some personal and some official.
Judge Barrett described the mixed messages on Mr Freed’s page. “For his profile picture, Freed chose a picture of himself in a suit with a city lapel pin,” he 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 “Lucy’s Dad, Jessie’s husband and City Manager, Director of Administration for the citizens of Port Huron, Mich.”
Mr. Freed, the justice wrote, “published profusely (and mostly) about his personal life.” But he also published information about his work.
“News was shared about the city’s efforts to streamline leaf collection and stabilize water intake from a local river,” Justice Barrett wrote. “It highlights communications from other city officials, such as a press release from the fire chief and an annual financial report from the finance department. From time to time, Freed solicited feedback from the public—for example, he once posted a link to a city survey about housing and encouraged his audience to complete it.”
During the coronavirus pandemic, Mr. Freed wrote about the city’s response. Those posts drew critical comments from a resident, Kevin Lindke, who Mr. Freed eventually blocked.
Mr. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of the US Court of Appeals for the Sixth Circuit, in Cincinnati, said Mr Freed’s Facebook account was personal, meaning the First Amendment had no role to play.
“Fried did not operate his page to fulfill any actual or apparent duty of his office,” Judge Thapar wrote. “And he didn’t use his government power to preserve 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 regularly interacts with the public.”
“The distinction between private conduct and state action,” he added, “turns on substance, not labels: Private parties can act with state authority, and state officials have private lives and their own constitutional rights. Categorizing behavior, therefore, may require careful consideration.”
The Supreme Court’s treatment of the second case, in an unsigned three-page opinion, was even more cryptic, sending the case back to the lower courts for reconsideration in light of the one involving Mr. Freed.
This 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 contact their constituents about school board activities, invite them to public meetings, solicit feedback on board activities, and discuss school safety issues.
Two parents, Christopher and Kimberly Garnier, often posted long and repetitive critical comments, and officials eventually blocked them. The parents sued and the lower courts ruled in their favor.
“We have no doubt that social media will continue to play an essential role in hosting public dialogue and facilitating the free expression at the heart of the First Amendment,” wrote Justice Marsha S. Berzon for a unanimous three-judge panel of her US Court of Appeals for the Ninth Circuit, San Francisco. “When state actors enter this virtual world and invoke their governmental status to create a forum for such expression, the First Amendment enters with them.”
