Social media ruling may impact case against Preston
A Supreme Court ruling on public officials’ social media platforms could improve conservative journalist Susan Dyer Reynolds’ prospects of being allowed to sue San Francisco Supervisor Dean Preston for blocking her from his Twitter account, where she had repeatedly criticized him.
It doesn’t guarantee that Reynolds would win her suit — Preston says he removed her not for criticizing his policies, but for seemingly threatening violence with a posting that asked him, “Do you have a child?” But the court’s unanimous ruling sets strict standards for public officials to remove critics from social media accounts they use to communicate with their constituents.
An official speaks on behalf of the government, and therefore must comply with constitutional standards of free speech, when the official “possessed actual authority to speak on the (government’s) behalf, and purported to exercise that authority when he spoke on social media,” Justice Amy Coney Barrett wrote in Friday’s 9-0 decision.
The cases before the court involved a city manager in Michigan and two school board trustees in Poway (San Diego County) who had blocked users from their Facebook and Twitter accounts after critical postings. The ruling will also apply to Reynolds’ suit against Preston, a former tenants’ rights lawyer and self-described democratic socialist, who blocked her publication, the Marina Times, on Twitter, now called X, in July 2020.
In her lawsuit in December 2022, Reynolds accused Preston of violating the First Amendment by censoring her for her repeated criticism of his positions, such as advocating reductions in funding for police and prisons.
Preston responded that Reynolds had threatened his family. After asking him whether he had a child, he noted, Reynolds tweeted, “Hope he doesn’t let them out at night by themselves after he gets rid of the entire SFPD and abolishes prisons.” She punctuated the tweet with the hashtag #PrestonsPurge, which Preston interpreted as a threat to his family.
Preston said Monday he is confident he can meet the court’s standards for dismissing Reynolds’ suit.
“The Supreme Court’s ruling should put an end to Reynolds’ already weak case against me,” he said in a statement. “She threatened my family, got blocked, and then filed a meritless lawsuit. It’s a waste of everyone’s time and I look forward to the case being tossed.”
But Erwin Chemerinsky, a constitutional law scholar and dean of the UC Berkeley Law School, said the court had made it clear that “blocking someone from access, especially if it is not an entirely personal account, likely violates the First Amendment.”
He noted that the court did not address whether threats might justify excluding someone from an official’s private account. But if Preston “was speaking as a public official on Twitter about matters of government business, I think his blocking of a critic would raise First Amendment issues” based on the court’s ruling, Chemerinsky told the Chronicle.
Reynolds’ lawyers have declined to comment on the ruling.
Reynolds’ suit is somewhat similar to claims made against then-President Donald Trump for blocking critics’ access to his Twitter account.
While private citizens generally can admit or exclude whomever they choose from their media platforms, federal courts ruled in 2018 and 2019 that the Trump account was a “public forum,” governed by the First Amendment guarantees of free speech, because he used it to communicate with the public about government policies. That meant he could not exclude outsiders because of their viewpoints, although he could block them for other reasons, such as threats or profanity.
In Friday’s Supreme Court ruling, Barrett said public officials, while bound by the First Amendment when acting on behalf of the government, “are also private citizens with their own constitutional rights,” including free speech.
They are speaking for the government, she said, when they are making official announcements authorized by law, or when they have indicated they were speaking as a government official “and have been recognized to have that authority.”
That standard will determine whether Reynolds can pursue her suit against Preston. A federal judge has refused to dismiss the suit, a ruling the supervisor has appealed.
The Supreme Court case is Lindke v. Freed, No. 22-611.