The Supreme Court on Tuesday grappled with when public officials can block people on their social media accounts, hearing appeals of two conflicting rulings in a dispute that could vastly change the way officials interact with their constituents online.
A few years after the justices sidestepped the issue by tossing as moot a similar lawsuit filed against then-President Trump, social media blocks issued by a city manager in Michigan and two school board members in California brought the issue back to the high court.
Over roughly three hours of arguments, the justices confronted the issue head-on, seemingly struggling at times with applying the First Amendment to the digital world.
“This is a case where there are First Amendment issues on both sides,” Justice Elena Kagan said, referring to the rights of the public officials and of their constituents.
At issue is whether an official engages in state action when they block someone on their personal profile or page used to post about their job, which would make the blocks subject to constitutional protections.
Much of the arguments centered on whether public officials’ accounts — which often mix personal and job-related posts — resemble a constitutionally protected public forum.
Lower courts applied conflicting legal tests, arriving at opposite conclusions on the issue. In one case, the court looked at the accounts’ “appearance and purpose” to deem them state action, while in the other case, the lower court said state action requires an exercise of a state duty or authority.
The justices seemed inclined to adopt language closer to the latter ruling, but it remains to be seen exactly where the Supreme Court will draw the line. Several justices noted that elected officials are effectively always on the clock, raising concerns that an overly broad rule could chill their speech.
“This discussion does seem like it has coalesced around an understanding of duties and authorities, and there’s some discussion about how capacious that has to be,” Justice Neil Gorsuch said.
The arguments probed the minutiae of modern social media, including questions about how a repost, rather than an original post, or a disclaimer about the account’s personal nature would impact the determination.
Justice Brett Kavanaugh concocted hypotheticals about officials announcing school snow days or road closures on their personal social media profiles, asking whether that should be deemed state action.
Kavanaugh repeatedly stressed a need to give “practical” guidance to local officials across the country.
“They need a clear answer,” he said at one point.
The first case arose after Poway, Calif., school board members Michelle O’Connor-Ratcliff and T.J. Zane blocked constituents on their Facebook pages and O’Connor-Ratcliff’s account on X, the platform then known as Twitter.
Parents of children at the school, Christopher and Kimberly Garnier, had left hundreds of comments on the pages, including allegations of financial mismanagement and racist incidents in the school district, court filings show. The Garniers’ children no longer attend school in the district, and the family now lives in another part of the country.
Siding with the Garniers, the 9th U.S. Circuit Court of Appeals said the blocks triggered the First Amendment and could not stand.
When the 6th U.S. Circuit Court of Appeals considered a similar case, however, it sided with the local official.
In that case, James Freed, the city manager of Port Huron, Mich., had deleted comments on his Facebook page left by resident Kevin Lindke and had also blocked three of Lindke’s profiles. Lindke’s comments criticized Freed over his handling of the COVID-19 pandemic, court filings indicate.
Though the two cases involve local officials, Trump is still a part of the debate.
The court punted consideration of Trump’s case until after he left the White House, then tossed the dispute as moot. However, Tuesday, they used Trump’s account to question Hashim Mooppan, an attorney for the California school board members, over what makes a public official’s social media private.
“So that means President Trump’s Twitter account was also personal?” Kagan asked, supposing that the former president wrote the tweets himself.
“Yes, Your Honor, then I think that he is engaging in his First Amendment rights … to talk about the government in his individual capacity,” Mooppan replied after some back-and-forth.
“But he seems to be doing, you know, a lot of government on his Twitter account,” Kagan countered.
Although the local officials in question used the platforms to post about their jobs, their social media presence came without any direction or support from the government itself. The posts about their jobs were shared alongside posts from their personal lives, including campaign posts or family and pet posts.
The Biden administration backed the local officials in both cases, arguing their blocks should be allowed.
Sopan Joshi, assistant to the U.S. solicitor general, argued before the justices that social media accounts operated in a personal capacity are tantamount to personal property.
“If the defendant denies access to government property, probably state action. If the defendant denies access to her own personal property, she’s probably acting in her capacity as a private property owner, not as an agent of the state,” Joshi said.
The officials are also backed by a bipartisan group of 17 states and the National Republican Senatorial Committee (NRSC), among others.
The American Civil Liberties Union and a group of First Amendment clinics, meanwhile, are backing the constituents.
The dueling cases are two of several this term that could restructure how public officials and federal agencies use social media. Another case that will be heard this term involves several Biden administration figures and agencies and considers whether the government can compel social media platforms to remove specific content.
Technology cases have often forced the justice to think outside their lived experience, and on numerous occasions, they’ve noted that social media isn’t the court’s strongest suit.
“I’m not a Facebook person,” Justice Clarence Thomas said Tuesday.
Decisions in the cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, are expected by the end of June.