The Supreme Court on Tuesday hears arguments in two cases on whether public officials can block their critics on their personal social media accounts.
One of the two cases, O’Connor-Ratcliff v Garnier, asks whether a public official engages in state action subject to the First Amendment by blocking a critic on his or her personal social media account, when that official uses that account to feature their job or for other matters related to the public—but are matters that not pursuant to their governmental duty.
That case involves two local school district officials who want the Supreme Court to reverse an appellate court ruling that said they violated the First Amendment by blocking constituents on their personal social media sites, which school officials also used to communicate updates related to their jobs.
Parents in the school district are asserting that the First Amendment should apply as its protections bar government action against speech in pubic forum based on viewpoint.
A second case, Lindke v Freed, asks whether a public official’s social media activity can constitute state action only if the official used the account to perform governmental duties or it was under the authority of his or her office.
That case was brought by a Port Huron, Michigan resident, Kevin Lindke, who had been blocked from commenting on a city manager James Freed’s personal Facebook page. The city manager was using his personal page to post updates about the city’s response to Covid-19.
While Lindke asserts that Freed was “putting out policy directives” and “issuing press statements,” Freed counters that he’s not an elected official and that “eighty percent of the posts are my family photos, pictures of my dog.”
Lindke is looking to reverse another appellate court ruling that rejected his First Amendment claims by finding that the city manager was not engaging in a state action when he blocked the resident.
Two years ago, Supreme Court dismissed a case over former President Trump’s attempts to block critics from his personal Twitter (now X) account, which he had been using throughout his campaign for President and his Administration.
The Supreme Court also threw out an appeals court ruling that found Trump violated the First Amendment whenever he blocked a critic.
The Justice Department had argued that blocking people from the @realdonaldtrump account, which had 88 million followers, was akin to elected officials who refuse to allow their opponents’ yard signs on their front lawns.
And a federal appeals court in New York had found that Trump used the account to make statements that were overwhelmingly official in nature.
In noting at the time that Twitter had suspended Trump’s account following the deadly January 6, 2021 insurrection “due to the risk of further incitement of violence,” Justice Clarence Thomas wrote in a separate opinion, “As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.” (Twitter/X has since reinstated the account.)
Thomas agreed with his colleagues about the outcome of the case, but he added that the situation raised “interesting and important questions.”
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