Washington — The Supreme Court on Tuesday is set to take its first step this term into disputes that raise questions involving free speech and social media, when it considers a pair of court fights involving public officials who blocked followers on social platforms.
The cases, one from California and a second from Michigan, are the first of several the justices will weigh this term that test how the First Amendment’s free speech protections apply in the age of social media. Other disputes that will be heard involve thein Texas and Florida that impose new regulations on content moderation policies, and a challenge to the to address misinformation online.
The two arguments set for Tuesday involve one current and one former member of the Poway Unified School District Board of Education in San Diego, California, and the city manager of Port Huron, Michigan. In both of the disputes, the public officials blocked followers who posted critical comments, and were then sued by those users for doing so.
In the California case, a federal appeals court sided with the blocked followers. The dispute in Michigan led to the opposite outcome, with a federal appeals court ruling in favor of the city manager.
The key question in both court fights, though, is whether a public official is engaging in a government action when they block a follower on social media. If they are, then the First Amendment would apply.
“The impact of these cases is very real, because it will affect both free speech and the public sphere and the ability to engage in participatory democracy,” Katie Fallow, senior counsel at the Knight First Amendment Institute, told CBS News. The Knight Institute brought a case against former President Donald Trump on behalf of Twitter users who were blocked from interacting with his account. A federal appeals court said Trump’s move was unconstitutional, but the Supreme Courtand ordered the case dismissed after he left office.
Fallow noted that while the Supreme Court said it will consider whether officials’ conduct constitutes government action, underlying these cases is whether the extent to which public officials, when using their social media accounts, “may discriminate against people based on viewpoint by blocking them or deleting their comments.”
The California case
The first case involves Michelle O’Connor-Ratcliff, the current vice president of the Poway Unified School District Board of Education, and T.J. Zane, a former board member. Both created public Facebook pages while they were running for positions on the school board in 2014. O’Connor-Ratcliff also had a public Twitter page.
Christopher and Kimberly Garnier, residents of San Diego County whose three children were enrolled in the school district, interacted with the board members’ social media accounts frequently, often with “repetitious and non-responsive comments and replies” to their Facebook posts and tweets, according to court papers. In one instance, Christopher Garnier made the same comment on 42 different posts by O’Connor-Ratcliff, and issued the same reply to 226 of her tweets.
In response to the comments, O’Connor-Ratcliff and Zane blocked the Garniers from their social media accounts, which prompted the couple to sue. The Garniers argued the board members violated their First Amendment rights by blocking them on social media, which they claimed were public spaces.
A federal district court sided with the Garniers, concluding that O’Connor-Ratcliff and Zane blocking them amounted to state action. The board members, the court found, “swathed [their social media pages] in the trappings of [their] office” by listing their positions as board members, identifying themselves as government officials and listing a school district email address on the page, in O’Connor-Ratcliff’s case.
The U.S. Court of Appeals for the 9th Circuit upheld the lower court’s decision and concluded the Garniers’ First Amendment rights were violated. O’Connor-Ratcliff and Zane “acted under color of state law by using their social media pages as public fora in carrying out their official duties” because “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties.”
“Both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public about the work of the PUSD Board,” the three-judge 9th Circuit panel found.
O’Connor-Ratcliff and Zane appealed the decision to the Supreme Court and argued that an official’s operation of a social media page does not constitute state action when no actual state duty or authority is involved. The case is known as O’Connor-Ratcliff v. Garnier.
“If no law or policy requires maintaining a social-media page, officials’ use of their own accounts to talk about their jobs is typically done ‘in the ambit of their personal pursuits,'” their lawyers wrote.
They said it was “nonsensical” to treat a personal social media page as a public forum, in part because the officials’ time in government will eventually come to an end. They noted that public officials are individual citizens with their own First Amendment freedoms.
If the high court allows the 9th Circuit’s decision to stand, O’Connor-Ratcliff and Zane warned that the result “will not be that public officials across the land all feel compelled to expose their personal social-media pages to the degradations of political opponents and abusive trolls. Rather than more speech, the result will be worse speech, less speech, or even no speech.”
But the Garniers countered in a filing that O’Connor-Ratcliff and Zane were state actors when they maintained their social media pages and therefore had to follow the Constitution.
“The question in this case is whether the Trustees were doing their job as members of the [PUSD] governing body when they set up and operated a mechanism for communicating with, and receiving comments from, members of the public about school board and school district affairs. They were. And their decision to block the Garniers from that mechanism was therefore state action,” their lawyers told the high court.
The Garniers noted that communicating with the public is well understood to be part of a public official’s job, which makes them state actors. They also argued that “appearance matters” — both Zane and O’Connor-Ratcliff categorized the nature of their page as “government official,” both identified themselves as being affiliated with the district, and O’Connor-Ratcliff provided her PUSD email address. Additionally, the two maintained separate Facebook profiles for their family and friends, the Garniers told the court.
Backing O’Connor-Ratcliff and Zane in the case is the Biden administration, who warned that leaving the 9th Circuit’s decision in place would have harmful ramifications.
“Subjecting large amounts of the speech of government personnel to constitutional restrictions could both chill that speech and induce government employers to regulate the content of that speech more extensively,” Solicitor General Elizabeth Prelogar, representing the government, wrote in a filing. “Those outcomes would undermine, not promote, First Amendment values.”
The Michigan case
The second court fight arose from comments posted by Port Huron resident Kevin Lindke to city manager James Freed’s Facebook page in March 2020 that were critical of the city’s handling of the COVID-19 pandemic. The case is known as Lindke v. Freed.
Freed had a private Facebook profile that he converted to a public page after he was named city manager in 2014. The page identified him as a “public figure,” and listed a Port Huron website and email address, as well as City Hall for the physical address associated with the page.
Freed wore a city manager’s pin in the profile photo. He used the page to share information about city programs, his work as city manager and, in early 2020, updates about the pandemic. He also shared personal updates.
While Freed and Lindke engaged in some back-and-forth on the Facebook page about the city’s COVID response, Freed deleted the constituent’s comments and blocked each of the three Facebook profiles that Lindke was using to post responses.
Lindke then sued, alleging his First Amendment rights were violated when Freed deleted his comments and blocked his accounts.
A federal district court ruled in favor of Freed, finding that his Facebook activity was not state action and therefore shielded from First Amendment scrutiny. The U.S. Court of Appeals for the 6th Circuit affirmed the lower court’s decision and laid out a “duty-or-authority test,” under which social media activity would be subject to constitutional scrutiny only if it is conducted in furtherance of governmental “duties” or where the activity depends on “state authority.”
Freed, the court said, was acting in his personal capacity and had not engaged in state action. No law required him to operate a Facebook page as part of his duties, and he didn’t rely on government resources, such as staff, to manage it. The profile also didn’t belong to the city manager’s office, the appeals court concluded.
Lindke asked the Supreme Court to review the decision, which he said ignores the role of a page’s appearance and function. Freed, he argued, designed his Facebook page to appear as a government outlet and used it to perform public responsibilities.
A blurred line
The cases come to the court as officials across all levels of government have looked to social media as a primary means of communicating with their constituents and sharing information with the public. But “the line between official and personal social media pages is often blurry, especially when a candidate continues to use the same social media account before and after they are elected to office,” said Kristi Nickodem, a professor at the University of North Carolina.
“It’s challenging for courts dealing with these cases to draw lines that provide robust protection for free speech and access to information, while also clearly defining how public officials may adequately separate their official and personal actions on social media,” she said.
These disputes, though, present the Supreme Court with an opportunity to resolve the split between the federal appeals courts on how to look at the issue of when a public official’s activity on social media constitutes state action.
The justices could adopt a version of one of the tests applied by the appeals courts or develop a new one altogether, Nickodem said.
“Will the court adopt a test that focuses on whether a government official appears to be acting in his official capacity on his social media account? Or will the court apply an inquiry focused more on the extent to which social media communication was one of the public official’s legally mandated or authorized duties?” she said. “State and local government officials are eager for clarity from the court on when and how the First Amendment constrains what they can or cannot do on their social media accounts.”
Fallow, of the Knight Institute, warned that if the Supreme Court takes a narrow view of state action, as the 6th Circuit has done in Lindke’s case, many public officials will use personal social media accounts and argue they’re not subject to the First Amendment, even if they appear to be closely tied to their professional roles and are sources of discussion with constituents.
“A ruling will have an impact on whether public officials can privatize their virtual town halls, and then they’ll be able to block anyone they want and make it look like a one-way cheering section for the government,” she said.
A decision from the Supreme Court is expected by the end of June.