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High court to decide if officials can block critics on social media

A circuit split has left the First Amendment issue in the hands of the Supreme Court.

WASHINGTON (CN) — The Supreme Court agreed Monday to hear two cases arising from public officials blocking critical commenters on their social media accounts, after the Sixth and Ninth Circuits reached different conclusions on whether the constituents' free speech rights were violated.

The first case involves two elected members of the Poway Unified School District Board of Trustees in San Diego who used personal Facebook and Twitter accounts to communicate with the public about their jobs and the district. 

Michelle O’Connor-Ratcliff and T.J. Zane argue their accounts were originally created in their private capacities to promote their political campaigns and that they were not acting under governmental authority when they blocked Christopher Garnier and Kimberly Garnier from the accounts.

The board members said they blocked the Garniers, who are parents of children attending schools in the district, after they posted repetitive comments and replies on their posts and tweets.

But the parents argue they did so because their emails were often left unanswered and a district rule largely precludes board members from responding to their comments at in-person meetings, which they frequently attended. They claim that expressing their concerns were "instrumental in bringing to light financial misconduct that resulted in the resignation and indictment of the district’s former superintendent," according to court filings.

After the parents sued the board members for infringing on their First Amendment right to free speech in the U.S. District Court for the Southern District of California, a federal judge ordered for them to be unblocked.

U.S. District Judge Roger Benitez, a George W. Bush appointee, ruled that the board members' conduct online constituted a state action because the social media pages were "used as a tool of governance," and therefore they were acting under color of law in blocking the Garniers.

While the judge determined the board members had blocked the parents due to the repetitive nature of their comments and not because of their content, he also found their continued block created a burden on speech that was not narrowly tailored to serve a substantial governmental interest.

A Ninth Circuit panel affirmed the district court's decision last July, prompting the boards members to appeal to the Supreme Court on the basis that their social media accounts were not run on behalf of the government.

"Regardless of whether social-media platforms may be considered a type of 'modern public square,' a public official’s personal account is nothing of the sort when operated independent of the government’s direction or authorization," Washington-based attorney Hashim Mooppan wrote in their petition to the high court.

Two months after the petition was sent to the Justices, another one was filed over a very different decision in an almost identical case.

When Kevin Lindke, a resident of Port Huron, Michigan, sued the city manager, James Freed, for deleting his critical comments and blocking his accounts on Facebook, a district court determined that the state was not involving in Freed's actions, making them immune from First Amendment scrutiny.

A Sixth Circuit panel affirmed the decision in June 2022, adopting a “duty-or-authority test,” under which a public official’s social media activity is subject to constitutional scrutiny only when the activity was conducted in furtherance of governmental duties or invoked state authority.

But Lindke argues that other circuits, such as the Ninth, have considered a broader range of factors, including a social media page’s purpose and appearance, especially when the public official’s conduct conveys the “impression that the page operated under the state’s imprimatur.”

Under these factors, Lindke claims Freed would be considered a state actor, because his personal Facebook profile was converted into a page due to the 5,000-friend limit, which classified him as a public figure and was used to post information about various city programs, policies and development initiatives.

In his petition to the high court, Lindke asserts that his case is more typical of disputes involving state officials who restrict access to their social media accounts by members of the public and therefore a "better vehicle" to address the issue in contrast to the case out of the Ninth Circuit.

"Freed blocked Lindke after only two critical comments, both of which were substantive, topical, and civil," attorney Allon Kedem wrote in the petition. "Thus, while the state-action question is dispositive here, as it is in O’Connor-Ratcliff, the substantive First Amendment question remains a live issue only in this case. That posture, in addition to being more representative of litigation in this area, would allow the Court to consider aspects of the First Amendment standard alongside the state-action inquiry, should it determine that doing so was appropriate."

In related cases litigated by the Knight First Amendment Institute, the Second and Fourth Circuits held that public officials who block people from their official social media accounts based on viewpoint are violating the First Amendment.

In Knight Institute v. Trump, the Second Circuit held that then-President Donald Trump could not block users from his @realDonaldTrump account because he disagreed with their speech. In April 2021, after Trump was no longer president, the Supreme Court found the case to be moot and vacated the Second Circuit decision on that basis, without addressing the merits.

“With more and more public officials using social media to communicate with their constituents about official business, public officials’ social media accounts are playing the role that have historically been played by city council meetings, school board meetings, and other offline public forums," said Katie Fallow, senior counsel at the Knight Institute.

She added, "As many courts have held, it doesn’t matter whether it’s the president or a local city manager, government officials can’t block people from these forums simply because they don’t like what they’re saying. The Supreme Court should reaffirm that basic First Amendment principle.”

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Categories / Appeals, Civil Rights, Government, Media, Politics, Technology

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