WASHINGTON (CN) — Government officials have used social media increasingly to connect with their constituents, but next week the Supreme Court will review what happens when they wish to disconnect.
For better or worse, the modern digital era has led government officials to take up a presence on social media. The arrangement gives officials a megaphone to spread their message and allows their constituents to easily follow what their representatives are up to.
But what happens when a politician blocks a member of the public, effectively cutting them off from potentially important information and preventing them from weighing in on official work? The Supreme Court will be reviewing two cases next week that present that very scenario.
The cases before the justices are complicated, however, by the nature of the politicians’ social media accounts, which they say were personal in nature. The Supreme Court will have to decide where to draw the line between public and private accounts for government officials to decide if those public servants violated the First Amendment by blocking their constituents.
Michelle O’Connor-Ratcliff and T.J. Zane were both members of the Poway Unified School District Board of Trustees in 2017 and used Facebook to share information with parents in the California school district. Zane’s Facebook page included his trustee title and stated it was an “official page … to promote public and political information." The page was also labeled as belonging to a government official.
O’Connor-Ratcliff’s Facebook page displayed a similar label, indicating she was a government official in a section describing the profile. She also included a link to her official email.
Both Zane and O’Connor-Ratcliff posted on their social media accounts about district affairs; posts included reports on school visits and the district’s policy plans. The representatives also asked constituents to fill out surveys and provide information for future meetings on their social accounts.
Christopher and Kimberly Garnier had children enrolled in the district while Zane and O’Connor Ratcliff served on the board. The Garniers claim social media was the best way to contact board members since district rules prevented parents from interacting with them during board meetings and emails went unanswered.
The Garniers' interactions with the board members went beyond liking a few of their posts. The couple repeatedly left comments on financial mismanagement by the former superintendent and incidents of racism.
In one instance, Christopher left the same comment on 42 different posts on O’Connor-Ratcliff’s page. On her Twitter page, he left the same reply on 226 of her tweets. None of the Garniers' comments included profanity or threatened physical harm.
O’Connor-Ratcliff and Zane both blocked the Garniers from their Facebook pages.
The Garniers sued, claiming the board members had violated their right to freely criticize the government in the public forum. A federal court ruled that O’Connor-Ratcliff and Zane’s Facebook pages should be considered state action and ruled for the Garniers. A judge then found after a bench trial that blocking the Garniers violated the First Amendment. The Ninth Circuit affirmed.
James Freed was in a similar position as O’Connor-Ratcliff and Zane. As city manager of Port Huron Michigan, he used Facebook to connect with constituents. His page included official information and became a hub for health guidance during the Covid-19 pandemic.
Resident Kevin Lindke did not find all of Freed’s posts helpful. On one occasion, Lindke commented on Freed’s photo at a restaurant, noting that city residents were suffering while its leaders were eating at expensive restaurants. Lindke characterized Freed’s pandemic response as “abysmal” and commented that the “city deserved better.”
Freed deleted Lindke’s comments and blocked his accounts.
Like the Garniers, Lindke sued, alleging First Amendment violations. The two cases diverge from there, however: The lower court concluded that Freed’s Facebook posts did not constitute state action. The Sixth Circuit affirmed.
The justices' examination of the two cases will decide the test for what constitutes state action.
The Garniers argue that because the board members used their Facebook pages to do their jobs, they were engaged in state action.
“When government officials are doing their jobs, they must obey the Constitution,” Cory Briggs, an attorney with Briggs Law Corporation representing the couple wrote. “Because a state ‘can act in no other way’ than through its officers, their acts are ‘that of the State’; otherwise, the Fourteenth Amendment ‘has no meaning.’ If officials choose to use some private resources to fulfill their responsibilities, that does not defeat their status as state actors.”
Lindke said the high court should avoid adopting a rigid state action test since this question is often case-specific.
“The government’s influence is vast and often subtle; a public official can act under color of law, affecting private interests in ways that matter under the Constitution, even when not executing a legal duty or drawing on the formal powers of office,” Allon Kedem, an attorney with Arnold & Porter representing Lindke, wrote. “The Sixth Circuit’s attempt to identify ‘necessary condition[s] across the board for finding state action’ was accordingly misguided, affording insufficient respect to ‘the range of circumstances that could point toward the State behind an individual face.’”
O’Connor-Ratcliff and Zane claim the state action doctrine can not be applied to actions that do not exercise state authority.
“When officials use their own social-media pages to communicate with the public about their jobs, but without pursuing any state duties or invoking any state authorities, they act in a private capacity,” Hashim Mooppan, an attorney with Jones Day representing the board members wrote.
Freed notes that the justices have to be careful not to chill government officials' speech. He said that while officials serve the public, they do not give up their First Amendment rights when they do so.
“When government employees use their personal social media pages they act in a private capacity, even if such communication is public or involves the public,” Victoria Ferres, an attorney with Fletcher, Fealko, Shoudy representing Freed wrote. “The government employee’s action is not made possible only because he is clothed with state power, and he is not acting at the direction of any job responsibility or requirement.”
The Biden administration weighed in on the debate, arguing that social media accounts can only be considered state action if the government owns and controls the pages.
The justices will hear arguments in the case on Oct. 31.
Follow @KelseyReichmann
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