During a Tuesday hearing, the Supreme Court considered whether public officials should be required to include disclaimers on their personal social media accounts and discussed various tests for determining when public officials blocking critics on personal social media accounts violates the First Amendment.
The justices heard arguments from lawyers representing the petitioners and respondents in two cases involving public officials who blocked citizens on their personal social media accounts.
In the first case, O’Connor-Ratcliff v. Garnier, the US Court of Appeals for the Ninth Circuit affirmed that school board members Michelle O’Connor-Ratcliff and T.J. Zane had violated the First Amendment when they blocked two parents, Christopher Garnier and Kimberly Garnier, on Facebook and Twitter after they posted long, often repetitive criticisms of the board.
In the second case, Lindke v. Freed, the US Court of Appeals for the Sixth Circuit affirmed a district court’s ruling that James Freed, a city manager in Port Huron, Michigan, hadn’t violated the First Amendment when he blocked Port Huron resident Kevin Lindke on Facebook after Lindke criticized his handling of the Covid-19 pandemic. The Sixth Circuit held that there was no state action because Freed was operating the page on his own, not as part of his role as city manager, and he wasn’t using government funds to operate the page.
O’Connor-Ratcliff and Zane’s petition to the Supreme Court asked it to decide: “Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”
Lindke’s petition to the Supreme Court asked it to decide: “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”
The justices and lawyers discussed various questions pertaining to how to determine when public officials’ actions on a personal social media account become state action and violate the First Amendment.
Related: First Amendment Claims Over Politicians Blocking Citizens On Social Media Are Getting Murky
The lawyers representing the public officials presented arguments and tests that would give public officials a great degree of latitude to block critics on their personal social media accounts, even if those accounts contained official branding and focused on matters related to their role as a public official.
Collectively, they suggested that public officials’ posts on their personal social media accounts should only be considered state action under a narrow set of circumstances. These circumstances include:
- If a public official exclusively posts something on their personal page that they have a duty or obligation to inform the citizenry of
- If a state representative instructs a public official to use their personal page for work-related posts
- If a public official uses government funds or resources to manage the page
- If a public official says they’re running the page in an official capacity or admits the page is an official government page
When the justices questioned whether public officials should be required to include disclaimers that make it clear they’re using a personal page to talk about the government, Hashim Mooppan, the lawyer representing the school board members in O’Connor-Ratcliff v. Garnier, argued that the First Amendment generally protects against compelled speech and that a disclaimer requirement would be “setting a trap for the unwary,” which would result in those who are unaware of the requirement losing their First Amendment rights.
Mooppan added that if disclaimers were to be introduced, “the right place to do that is by the state regulating, rather than this court adopting as a rule of constitutional law that the First Amendment of its own force somehow requires a disclaimer.”
The lawyers representing citizens who were blocked by public officials argued that public officials’ posts on their personal social media accounts should be subject to more scrutiny.
Pamela Karlan, the lawyer representing the parents in O’Connor-Ratcliff v. Garnier, pushed back against the assertion that a disclaimer requirement would chill public officials’ speech. She noted that the school board already has a requirement for board members to include disclaimers when speaking in a personal capacity and that O’Connor-Ratcliff had never included a disclaimer.
Allon Kedem, the lawyer representing Lindke in Lindke v. Freed, argued that the way public officials use their personal social media accounts should determine whether they’ve engaged in state action. He asserted that Freed had set his personal page up as an “ongoing channel for communication where people know that’s the place to go in the future for important information” because he was using it to post multiple daily posts about his work and to interact with constituents.
You can get the full hearing and transcript of O’Connor-Ratcliff v. Garnier here.
You can get the full hearing and transcript of Lindke v. Freed here.
The Supreme Court is expected to issue its decision on both cases next year.
