Rules set for some blocking by elected officials online
WASHINGTON >> The Supreme Court, in a pair of unanimous decisions Friday, added some clarity to a vexing constitutional puzzle: how to decide when elected officials violate the First Amendment by blocking people from their social media accounts.
Justice Amy Coney Barrett, writing for the court in the lead case, said two things are required before officials may be sued by people they have blocked. The officials must have been empowered to speak for the government on the issues they addressed on their sites, she wrote, and they must have used that authority in the posts in question.
The court did not apply the new standard to the cases before them, involving a city manager in Port Huron, Michigan, and two members of a school board in California. Instead, it returned the cases to lower courts to perform that task.
The cases were the first of several this term in which the Supreme Court is considering how the First Amendment applies to social media. The court heard arguments last month on whether states may prohibit large technology platforms from removing posts based on the views they express, and it will consider Monday whether Biden administration officials may contact social media platforms to combat what they say is misinformation.
The cases Friday were less significant than the others, and the tentativeness of the two rulings demonstrated the difficulty of applying old doctrines to new technology.
In both cases, the question was whether the officials’ use of the accounts amounted to state action, which is governed by the First Amendment, or private activity, which is not.
The one involving the city manager, Lindke v. Freed, No. 22-611, concerned the public Facebook page of James Freed, which he used to comment on a variety of subjects, some personal and some official.
Barrett described the mixed messages on Freed’s page. “For his profile picture, Freed chose a photo of himself in a suit with a city lapel pin,” she wrote. “In the ‘about’ section, Freed added his title, a link to the city’s website and the city’s general email address. He described himself as ‘Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, Mich.’”
Freed, Barrett wrote, “posted prolifically (and primarily) about his personal life.” But he also posted information about his work.
“He shared news about the city’s efforts to streamline leaf pickup and stabilize water intake from a local river,” Barrett wrote. “He highlighted communications from other city officials, like a press release from the fire chief and an annual financial report from the finance department. On occasion, Freed solicited feedback from the public — for instance, he once posted a link to a city survey about housing and encouraged his audience to complete it.”
During the coronavirus pandemic, Freed wrote about the city’s response. Those posts prompted critical comments from a resident, Kevin Lindke, whom Freed eventually blocked.
Lindke sued and lost. Judge Amul Thapar, writing for a unanimous threejudge panel of the 6th U.S. Circuit Court of Appeals, in Cincinnati, said Freed’s Facebook account was personal, meaning the First Amendment had no role to play.
“Freed did not operate his page to fulfill any actual or apparent duty of his office,” Thapar wrote. “And he did not use his governmental authority to maintain it. Thus, he was acting in his personal capacity — and there was no state action.”
Barrett wrote that “the question is difficult, especially in a case involving a state or local official who routinely interacts with the public.”
“The distinction between private conduct and state action,” she added, “turns on substance, not labels: Private parties can act with the authority of the state, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.”
The Supreme Court’s treatment of the second case, in an unsigned three-page opinion, was even more cryptic, sending the case back to the lower courts for reconsideration in light of the one involving Freed.
That case, O’connorratcliff v. Garnier, No. 22324, concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’connor-ratcliff and T.J. Zane. They used the accounts, created during their campaigns, to communicate with their constituents about activities of the school board, invite them to public meetings, ask for comments on the board’s activities and discuss safety issues.