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Monday, December 11, 2023 | Back issues
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Supreme Court attempts to untangle public and private social media use by government officials 

The Supreme Court is conducting a wide-ranging review of social media this term, beginning with whether public officials can block their constituents online.

WASHINGTON (CN) — Public officials’ social media accounts drew Supreme Court scrutiny on Tuesday, with the justices forced to differentiate between politicians’ public and private actions online. 

Local officials were at issue during Tuesday’s arguments, but the justices were considering how a ruling in the case could stretch all the way to the highest branches of government. 

“So that means President Trump’s Twitter account was personal?” Justice Elena Kagan asked of the attorney arguing in favor of a narrower characterization of which accounts should be considered state action.

Kagan said that blocking an individual from Trump’s account during his administration would have deprived that person of essential information. 

“I don't think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Kagan said. “It was an important part of how he wielded his authority, and to cut a citizen off from that is to cut a citizen off from part of the way that government works.” 

Justice Sonia Sotomayor noted the consequences of blocking an account on Twitter, now X, which recently updated its guidelines to prevent nonusers from viewing posts. 

“What happens now when, if you don't have your own Twitter account, you can't even look, and if you're blocked, you're not permitted to look?” the Obama appointee said.

The justices waffled through varying tests to determine when an account should be considered state action. Chief Justice John Roberts asked if the percentage of official posts should be under review, while Justice Samuel Alito wondered if the test should include who owned the social media page. 

Justice Ketanji Brown Jackson didn’t think public officials should get to decide the issue themselves. 

“Even if we agree with you that government officials can operate in their personal capacity and in their official capacity, why should they get to choose whether or not they're doing one or the other without, say, making a clear disclaimer, or making it clear to people that this is actually happening in their personal capacity?” the Biden appointee said. 

Kagan said the task before the court was challenging because both public officials and their constituents have First Amendment interests at play. 

“That's what makes these cases hard, is that there are First Amendment interests all over the place,” Kagan said. 

Justice Amy Coney Barrett cited the difficulty in creating a test when there is a broad range of authority that public officials can exercise. 

“It's very difficult when you have an official who can in some sense define his own authority,” the Trump appointee said. “So I think, for a governor or, you know, President Trump, it's a harder call than someone like a police officer, who's a subordinate. Or my law clerk could just start posting things and say this is the official business of the Barrett chambers, right?” 

Barrett made clear that it would not be okay for her clerks to do such a thing. 

Two board members of a Poway, California, school said there needed to be clear evidence of official authority or duties of the officials for them to be considered state action. 

“Individuals who hold public office are still private citizens too,” Hashim Mooppan, an attorney with Jones Day representing the board members, said. “When acting in their personal capacity, they retain their First Amendment rights to decide who can participate in a community discussion that they host at their own property. They are thus free to block users from their personal social media pages unless they choose to operate those pages in their official capacities instead.” 

Michelle O’Connor-Ratcliff and T.J. Zane used Facebook pages to share information concerning their roles on the Poway Unified School District Board of Trustees. Both board members identified themselves as government officials, and O’Connor-Ratcliff included her official email in her contact information. 

The Facebook pages shared information about reports on school visits and the district's policy plans. O’Connor-Ratcliff and Zane occasionally solicited responses from constituents in the form of surveys. 

Christopher and Kimberly Garnier, two parents in the board members’ district, used the officials’ accounts to air their grievances about financial mismanagement by the former superintendent and incidents of racism. Christopher left the same comment on 42 different posts on O’Connor-Ratcliff’s page. 

The repeated messages resulted in O’Connor-Ratcliff and Zane blocking the Garniers. The couple saw the limitation as a violation of their First Amendment rights and sued the board members. 

A federal court considered O’Connor-Ratcliff and Zane’s Facebook pages as state action, ruling in favor of the Garniers. The Ninth Circuit then affirmed. 

At the Supreme Court, the Garniers said receiving feedback was an important function of board members’ jobs. Pamela Karlan, an attorney with the Stanford Law School Supreme Court Litigation Clinic representing the couple, said the court should avoid relying solely on disclaimers on officials’ social media pages to determine state action. 

“I'm not sure that the Court wants to have a magic words test for state action,” Karlan said. 

The justices also heard from Kevin Lindke, a resident of Port Huron, Michigan, who experienced similar limits on his access to the account of a city manager. Lindke was blocked from James Freed’s Facebook page after leaving critical comments. 

Freed used his Facebook page to post health guidance during the Covid-19 pandemic. However, he also posted a photo eating at an upscale restaurant. Lindke found the post offensive, noting that city leaders were dining at expensive restaurants while residents were suffering. Lindke also commented that Freed’s pandemic response was “abysmal.” 

Lindke was blocked from Freed’s page, so he sued, like the Garniers. Unlike the Garniers, however, Lindke lost his fight at the lower court and the Sixth Circuit. 

First Amendment advocates urged the justices to avoid a ruling allowing public officials to engage in viewpoint discrimination. 

“The public officials in these cases are seeking a ruling that would allow them to block people whose views they do not like from their social media accounts, even when the officials use those accounts to communicate with their constituents about official business,” Katie Fallow, senior counsel at the Knight First Amendment Institute at Columbia University, said in a statement. “With more officials using social media accounts as forums for debate and civic engagement, the Supreme Court should confirm that the First Amendment protects the rights of people to speak in these forums regardless of their views.”

Follow @KelseyReichmann
Categories / Appeals, Consumers, First Amendment, Government, Media

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