The Supreme Court, in a pair unanimous decisions on Friday, added some clarity to a vexing constitutional conundrum: 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 people who have been blocked can sue officials. The officials should have been empowered to speak on behalf of the government about the issues they addressed on their sites, she wrote, and they should have used that authority in the posts in question.
The court did not apply the new standard to the cases before it, which involved a city manager in Port Huron, Michigan, and two school board members in California. Instead, he returned the cases to lower courts to perform that task.
The cases were the first of several this term in which the Supreme Court is considering how the First Amendment applies to social media. The court heard arguments last month on whether states can prohibit big tech platforms from removing posts based on the opinions they express, and will consider Monday whether Biden administration officials can contact social media platforms to combat what they say. which they say is misinformation.
Friday's cases were less significant than the others, and the vacillation of the two rulings demonstrated 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 governed by the First Amendment, or private activity, which is not.
The one involving the city manager, Lindke v. Freed, No. 22-611, concerned 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 conflicting messages on Mr. Freed's page. “For his profile photo, Freed chose a photo of him wearing a suit and 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, Chief Administrative Officer for the Citizens of Port Huron, Michigan.'”
Mr. Freed, the judge wrote, “published prolifically (and primarily) about his personal life.” But he also published information about his work.
“He shared news about the city's efforts to streamline leaf collection 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. At times, Freed solicited public comments; For example, he once posted a link to a city survey on housing and encouraged his audience to complete it.”
During the coronavirus pandemic, Freed wrote about the city's response. Those posts prompted critical comments from one resident, Kevin Lindke, whom Freed eventually blocked.
Mr. Lindke sued and lost. Justice Amul R. Thaparwriting for a unanimous panel of three judges of the 6th U.S. Circuit Court of Appeals in Cincinnati said Freed's Facebook account was personal, meaning the First Amendment had no role to play.
“Freed did not operate his page to fulfill any real or apparent duty of his office,” Judge Thapar wrote. “And he didn't use his governmental authority to maintain it. Therefore, he was acting in his personal capacity and there was no state action.”
Judge Barrett wrote that “the issue is difficult, 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, “depends on substance, not labels: private individuals can act with the authority of the State, and state officials have private lives and their own constitutional rights. Therefore, categorizing behavior may require a closer look.”
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.
That case, O'Connor-Ratcliff v. Garnier, No. 22-324, concerned 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 school board activities, invite them to public meetings, solicit feedback on board activities, and discuss school safety issues.
Two parents, Christopher and Kimberly Garnier, frequently posted long, repetitive critical comments, and officials eventually blocked them. The parents sued and the lower courts ruled in their favor.
“We have little doubt that social media will continue to play an essential role in hosting public debate and facilitating the free expression that lies at the heart of the First Amendment.” Judge Marsha S. Berzon wrote for 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 comes in with them.”
