High court struggles on whether officials may block social media critics

The Supreme Court on Tuesday struggled to agree on how to determine when public officials can block critics from their private social media accounts, reviewing two cases that will have broad implications for citizen interactions with politicians online.

All nine justices seemed to acknowledge the challenge and importance of defining when government employees are acting in an official capacity online, and therefore bound by First Amendment restrictions on censorship; and when they are acting as private citizens, with their own individual free speech rights.

But there was no clear consensus on the answer after three hours of oral argument.

The pair of cases before the justices presented a fresh opportunity for them to consider when public officials - in this case, two school board members in California and a city manager in Michigan - can bar critical voices from social media accounts that are increasingly used at all levels of government to communicate with citizens. They are part of a set of legal controversies the justices will review this term that will clarify the future of speech on social media platforms.

The discussion on the bench did not breakdown along the usual ideological lines, but the court’s three liberal justices voiced the strongest concerns about ensuring citizens have access to public officials and critical community information online. Justice Elena Kagan emphasized the increasing role of social media in elections and government operations.

“This is the forum for officials to talk to citizens, for citizens to talk to officials, for citizens to talk to each other, and it is becoming increasingly so,” she said, adding that whatever rules the court writes for the future have to account for “the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy” if they can be too easily blocked from various sites.

The Biden administration backed the government officials in both cases, saying they had the right to block users from their private accounts, which they categorized as a type of private property, because they were not acting in an official capacity. Assistant Solicitor General Sopan Joshi said blocking certain users from private accounts is no different than elected officials choosing to speak only to a private room full of Republicans, or Democrats, to get their views about government policies.

“I understand you can think of a lot of odious behavior by government officials being discriminatory in whom they speak to and whom they listen to, but, at the end of the day, the Constitution does not prohibit even odious behavior by private citizens,” Joshi said.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. pushed back on the government’s suggestion that virtual social media accounts are comparable to an official’s private physical property, where a politician, for instance, could hold a fundraiser or private discussion with like-minded constituents without violating the First Amendment.

“It doesn’t cost anything to open a Facebook page,” Alito said. “To make so much turn on who owns the Facebook page seems quite artificial.”

Roberts also asked, “In what sense is this really private property?”

“It’s just the gathering of the protons, or whatever they are,” he said, drawing laughter from the courtroom. “Should I be concerned about the fact that we have this old concept applied to what we always say is some new phenomenon?”

In the first case, Christopher and Kimberly Garnier, a Southern California couple who regularly posted critical messages on the Facebook pages of two school board members, were blocked from those pages - and then filed a lawsuit.

The U.S. Court of Appeals for the 9th Circuit sided with the Garniers in a broad ruling that said the decision of the school board members to block the couple could be considered a government action, because of the appearance and content of the school board members’ Facebook pages.

The board members, Michelle O’Connor-Ratcliff and T.J. Zane, regularly posted about school board meetings, surveys related to school district policy, the budget and public safety issues. Zane’s page included a photo of a Poway Unified School District sign. O’Connor-Ratcliff labeled herself a government official on her page and provided a link to her school system email address.

Justice Brett M. Kavanaugh pressed the attorney for the school board members about whether an official is acting in a government capacity when announcing rules, for instance, about parking during snow storms or a town recycling schedule if the information is only available on the official’s personal account, not the official government site.

“Local officials around the country need guidance,” said Kavanaugh, whose wife is a town manager in Maryland.

Hashim M. Mooppan, an attorney for the board members, emphasized that government officials have the right to speak in their personal capacity about their jobs. The Garniers, according to the school board members, had spammed their accounts with repetitive, lengthy comments, leaving the same comment on multiple posts.

Mooppan said public officials can talk to their neighbors at church about government business or address campaign rallies without engaging in official government action. So too, he added, they can decide how to operate their private online accounts.

“Individuals who hold public office are still private citizens,” he 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.”

The lengthy argument provided some insight into how the justices themselves use and think about social media. Justice Clarence Thomas declared himself “not a Facebook person.” Justice Sonia Sotomayor seemed very familiar with developments on the platform X, formerly known as Twitter, noting that it can block access - not just commenting privileges - to an account.

In the second case, a different appeals court reached the opposite conclusion about when people can be blocked, based on a narrower test for evaluating the social media activity of elected officials. James Freed, the city manager of Port Huron, Mich., was sued after he blocked a constituent’s critical comments in response to a Facebook post about the city’s coronavirus pandemic policies. Kevin Lindke said Freed violated the First Amendment when he deleted Lindke’s comments and blocked his account.

The U.S. Court of Appeals for the 6th Circuit, however, sided with Freed, who described himself on his Facebook page as a father, husband and city manager, and listed the city’s website and general email as his contact information. Although Freed posted about city affairs, the overall content on the page he created before his appointment as city manager tended toward family activities, according to court filings.

The 6th Circuit held that a public official’s social media activity is only state action when the employee is carrying out his or her official duties or acting under the government’s authority.

Throughout both arguments on Tuesday, the justices wrestled with how to define duty and authority. Several asked whether the terms include the customary expectations of government officials that are not specifically listed in law.

“This is all a question of how broadly do we define authority or duty,” said Justice Amy Coney Barrett, who earlier suggested the question becomes more difficult when evaluating the actions of elected officials at the highest levels of government.

“For a governor or, you know, President Trump, it’s a harder call than someone like a police officer, who’s a subordinate,” she said. “Or, my law clerk could just start posting things and say this is the official business of the Barrett chambers, right? And that wouldn’t be okay,” she added, with emphasis, to laughter from the courtroom.

The high court in 2021 did not take up a case in which a lower court had ruled that President Donald Trump could not block critics from his feed on Twitter. After Trump lost reelection, and Twitter canceled his account, the Supreme Court vacated the appeals court decision, saying the matter was moot.

Pamela S. Karlan, co-director of Stanford Law School’s Supreme Court Litigation Clinic and the attorney for the California couple, told the justices on Tuesday that the test should be to ask whether an official is doing his or her job.

That prompted Alito to ask whether the local mayor at the grocery store is doing his job if he listens to supporters while he shops but tells a constituent with opposing views to call the office during normal business hours?

An official pushing a shopping cart is clearly off duty, Karlan responded. But maintaining a social media forum, in which people can comment and talk to one another about public business, she said, amounts to state action, subject to First Amendment constraints.

Karlan acknowledged the free speech interests on both sides of the cases, but warned the court of “devastating consequences” for the public if they are “denied access to the sites on which their officials are talking to them and asking for their reactions.”

The cases are O’Connor-Ratcliff v. Garnier and Lindke v. Freed.