The Supreme Court hard work in a couple of arguments Tuesday to find a clear constitutional line separating the purely private social media accounts of elected officials from those that reflect government actions and are subject to the First Amendment. However, after three hours, it was not clear that the majority of the judges had decided on a clear test.
The question in both cases was when the Constitution limits the ability of officials to block users from their accounts. The answer revolved around whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.
That same question seemed directed at the Supreme Court after the federal appeals court in New York governed in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he could not exclude people based on their views.
If the account had been private, the court said, Trump could have blocked anyone he wanted. But because he used the account as a government official, he was subject to the First Amendment.
After Trump lost the 2020 election, the Supreme Court overturned the appeals court ruling as debatable.
Justice Elena Kagan said Tuesday that Trump’s Twitter account was in an important sense official and therefore subject to the First Amendment.
“I don’t think a citizen can really understand the Trump presidency, so to speak, without any access to all the things the president said about it,” Justice Kagan said. “It was an important part of how he exercised his authority. And to isolate a citizen from that is to isolate a citizen from part of the way the government works.”
Hashim M. Mooppan, a lawyer for two school board officials, said none of that implicated the First Amendment.
“President Trump could have done the same thing from Mar-a-Lago or at a campaign rally,” Mooppan said. “If he gave every one of those speeches at his personal residence, he would somehow not convert his residence into government property.”
The cases filed Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on whether states can prohibit large social media companies from removing posts based on the opinions they express and whether Biden administration officials can contact social media platforms to combat what they say. which is erroneous information.
The first case filed Tuesday 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.
“When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment comes in with them.” 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.
Mooppan said the accounts were personal and were created and maintained without any involvement from the district.
Justice Brett M. Kavanaugh pressed Mr. Mooppan on what it would take for the accounts to be official and therefore subject to the First Amendment. “Is announcing rules a state action?” the judge asked.
Mooppan said it would be if the ad wasn’t available elsewhere. He gave a more ambiguous answer to a question about school closure notices. But he said a general public safety reminder was not a state action.
Pamela S. Karlan, an attorney for the parents, said O’Connor-Ratcliff’s Facebook account was almost entirely official. “Of the hundreds of posts, I found only three that were not really work-related,” Ms. Karlan said, adding, “I defy anyone to look at that and think that’s not an official website.”
The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, city manager of Port Huron, Michigan. He used it to comment on a variety of topics, some personal and others. official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.
The posts prompted critical responses 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.”
Justice Kagan told Allon Kedem, Lindke’s attorney, that Freed’s page did not appear particularly official.
“There are a lot of pictures of babies and dogs and obviously personal things,” she said. “And interspersed with that is, as you say, communication with constituents on important issues. “But it’s hard to look at this page as a whole, unlike the last case, and not think that surely this couldn’t be the official communication channel.”
