Court weighs officials’ blocks on social media
WASHINGTON — The Supreme Court worked hard in a pair of arguments Tuesday to find a clear constitutional line separating elected officials’ purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.
The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer turned on whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.
That same question had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.
Had the account been private, the court said, Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment.
After Trump lost the 2020 election, the Supreme Court vacated the appeals court’s ruling as moot.
The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the
First Amendment applies to social media companies. The court will hear arguments next year on both whether states may prohibit large social media companies from removing posts based on the views they express and whether Biden administration officials may contact social media platforms to combat what they say is misinformation.
The first case argued Tuesday 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 in the schools.
Two parents, Christopher and Kimberly Garnier, frequently posted lengthy and repetitive critical comments, and the officials eventually blocked them. The parents sued, and lower courts ruled in their favor.
Hashim M. Mooppan, a lawyer for two school board officials, said the accounts were personal and were created and maintained without any involvement by the district.
The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, the city manager of Port Huron, Mich. He used it to comment on a variety of subjects, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.
The posts prompted critical responses from a resident, Kevin Lindke, whom Freed eventually blocked. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of Sixth Circuit Court of Appeals, in Cincinnati, said Freed’s Facebook account was personal, meaning that the First Amendment had no role to play.