As I noted in my column last week, officials from both major parties agree that they don’t have to put up with nasty criticism when they use their social media accounts for official purposes. Politicians ranging from Donald Trump to Rep. Alexandria Ocasio-Cortez (D-NY) have claimed the privilege of blocking users whose opinions irritated them. This week, the U.S. Supreme Court heard two cases that raise the question of whether and when such a freeze violates the First Amendment.
A case, O’Connor-Ratcliff v Garnier, is about two members of a Southern California school board, Michelle O’Connor-Ratcliff and TJ Zane, who were annoyed by the criticism of two parents of students. Christopher and Kimberly Garnier “regularly leave critical comments about” O’Connor-Ratcliff and Zane on the board members’ pages, “sometimes repeatedly making the same long criticism,” the U.S. Court of Appeals for the 9th Circuit noted last year . O’Connor-Ratcliff and Zane “eventually blocked the Garniers completely from their social media pages.”
O’Connor-Ratcliff and Zane had used their Twitter and Facebook accounts to promote their campaigns for office and then, after they were elected, “to inform voters about the goings-on in the School District and in the workplace ‘. [school board]to invite the public to board meetings, to solicit input on major board decisions, and to communicate with parents about safety and security issues at the district’s schools.” Considering the ways in which the board members used their accounts, the ruling the 9th Circuit: Their decisions to block the Garniers amounted to state action inconsistent with the First Amendment.
The other Supreme Court case that addresses this issue, Lindke vs. Freed, This involves Port Huron, Michigan, City Manager James Freed. In addition to using his Facebook account for personal purposes, the U.S. Court of Appeals for the 6th Circuit noted last year, Freed posted “about some of the administrative directives he issued as city manager,” including COVID-19 policies “that he initiated for Port Huron and news articles about public health measures and statistics.” One resident, Kevin Lindke, “disagreed with Freed’s handling of the pandemic.” Freed didn’t “appreciate” Lindke’s comments, so he deleted them and eventually blocked Lindke altogether.
Unlike the 9th Circuit’s decision regarding O’Connor-Ratcliff and Zane, the 6th Circuit ruled that Freed’s blocking of Lindke did not qualify as a state action. “Activity on social media can constitute state action if it (1) is part of an office holder’s ‘real or apparent duty’.[ies],” or (2) could not happen in the same way “without the authority of [the] office,” the appellate court said, quoting Waters v. City of Morristown, a 2001 6th Circuit decision. Because “Freed maintained his Facebook page in his personal capacity,” the court said, his actions did not meet that test.
During oral arguments in those two cases on Tuesday, the justices grappled with the implications of that test and possible alternatives. In O’Connor-Ratcliff v GarnierHashim Mooppan, the attorney representing the school board members, argued that a public official is free to block critics who insult him unless he explicitly says, “This is a page that I operate in my official capacity.” That claim prompted Justice Elena Kagan to note the elephant in the room. The implication, Kagan said, was that “President Trump’s Twitter account was also personal.”
Kagan was referring to a 2019 ruling in which the U.S. Court of Appeals for the 2nd Circuit ruled that then-President Trump violated the First Amendment by blocking critics on Twitter. “Once the President has chosen a platform and opened its interactive space to millions of users and participants,” the appeals court said, “he may no longer selectively exclude those with whom he disagrees.” Although that decision discussion came to light after Trump left office, Kagan seemed to find its reasoning compelling.
Mooppan said the case was different because Trump “used a government employee to help him run the page.” But suppose he didn’t, Kagan said. If Trump had written all his tweets himself, would he have been free to decide who could participate in the ensuing discussion based on whether he liked what they said? Yes, said Mooppan.
Kagan noted that Trump “seemed to be doing a lot of government work on his Twitter account” by “announcing policies” and making appointments. “I don’t think any citizen could really understand the Trump presidency… without some access to all the things the president has said about it,” she said. “It was an important part of the way he exercised his authority. And when you cut a citizen off from that, you cut a citizen off from part of the way government works.”
Mooppan compared Trump’s use of his Twitter account to “a campaign rally” where he made “an official announcement.” While that “might be considered official in some sense,” he said, “it would not turn the campaign rally into a government forum where there was a constitutional right of entry.” Likewise, if Trump had delivered the same messages to an audience at Mar-a-Lago, “his home would somehow not be turned into government property.”
Officials “retain their First Amendment rights to decide who can participate in a community discussion they host on their own property,” Mooppan said. “So they are free to block users from their personal social media pages unless they choose to manage those pages in their official capacity instead.”
The Biden administration, which filed briefs in support of the government officials in both cases, endorsed the idea that their social media accounts should be considered private property. But several judges seemed skeptical of that approach.
“The fact that it was his personal property seems neither here nor there,” Kagan said. If he “governed it, exercised his authority over it, and announced policies over it…then that was part of the way the government operated.” During the arguments Lindke v. LiberatedKagan called the distinction the Biden administration made “archaic” and noted that “more and more of our government is on social media.”
Justice Samuel Alito also found the distinction between private and government property unhelpful in this context. “In the physical world,” he told Masha Hansford, an assistant to U.S. Solicitor General Elizabeth Prolegar, during arguments. Lindke vs. Freed“practical constraints severely limit the ability of government officials to move what closely resembles government events or functions to private property… Your ownership-based rule may make more sense in that world, but it costs nothing to have a Facebook page. It seems quite artificial to determine so much who owns the Facebook page.’
Chief Justice John Roberts seemed inclined to agree. “I was very surprised when I read the letter and saw so much emphasis on private property,” he said. “Usually in these social media things we’re told it’s not a physical asset… In what sense is this really private property?”
The 2nd Circuit and 9th Circuit instead highlighted the use officials made of their ostensibly private social media accounts. But that approach raises the question of how much official use is necessary to invoke the First Amendment right to participate in the discussion.
In the California case, Judge Clarence Thomas noted during oral arguments in Lindke vs. Freed, “there were only three instances” in which school board members used their accounts for personal messages. But in Freed’s case, he said, “it’s a big deal.”
Allon Kedem, the lawyer representing Lindke, admitted that “there were certainly many more personal messages.” But he noted that “the ratio of work-related messages to personal messages changed dramatically at the beginning of the pandemic, when you would expect, as many of the services and the way he did his work migrated online.”
Kedem argued that Freed, like Trump, had turned his account into a channel to communicate with his voters. But that goal, Justice Brett Kavanaugh suggested, is difficult to distinguish from the more personal goal of seeking moral support, or even constructive criticism, from a friendly audience: “Elected officials and appointed officials rely on groups of people who are supporters, friends , people they have known, people who are honest, not people who just come and shout at them for advice, thoughts, including negative and critical thoughts, but they want to exclude the person who is. the jerk who is going to interrupt the whole thing.”
Similarly, Alito worried that Garniers’ First Amendment claim would have too much influence on the private lives of government officials. Suppose a mayor “stands in the grocery store and is repeatedly approached by voters,” Alito said. The mayor “doesn’t really want to be disturbed, but listens to supporters and people who sympathize with the mayor’s program, but when someone who is a known opponent approaches the mayor, the mayor says, ‘Look, please call my office.’ ‘Is that state action?
If government officials are “clearly off duty,” the Garniers’ attorney, Pamela Karlan, responded, “they’re not doing their job.” But if they “maintain a forum” for discussion of work-related matters where “people can comment and people can talk to each other,” she said, “that would be state action.”
Alito seemed dissatisfied with that distinction. “Elected officials have told me they are always on call,” he said. “They always do their job. They are always approached by voters.”
But is it really that far-fetched to suggest that there is an important difference between a mayor being harassed by voters in the supermarket and, say, a mayor presiding over a city council meeting? In the latter context, he clearly could not exclude, silence or remove members of the public based on their views. The question is when discussions on social media are analogous to that public forum. Given Kagan’s observation that the work of government today is largely conducted through social media, including ostensibly personal accounts, “never” seems like an unrealistic answer.