The Supreme Court will wade into a legal matter that was originally teed up when former President Donald Trump blocked some critics from following his social media posts, or whether public officials can face lawsuits for blocking critics online.
Justices will hear arguments in a pair of cases Tuesday involving less prominent subjects, school board members in Southern California and a city manager in Michigan. With more and more public officials using social media to get out their messages, the high court's ruling could set a clear test for future cases and even a warning for how officials can use their online accounts.
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The heart of the arguments is whether blocking someone on social media arises to a free speech violation under the First Amendment, but to determine that question requires the justices to look at two separate cases.
One of the cases to be heard is Lindke v. Freed and asks whether a public official's post and other social media activity actually amounts to part of their government function. If it does, then preventing someone from following an official may arise to a "state action" that could be cited as a constitutional claim, a question that directly ties to the other case O'Connor-Ratcliff v. Garnier.
Gary Lawkowski, a lawyer with Dhillon Law Group, told the Washington Examiner he believes the questions are "so intertwined" that it will be hard to separate two, noting it may result in "brighter line rules" through the court's formal analysis.
"This will be a case that will at least add some clarity on that debate and kind of clarify when are government officials acting as government officials when they're on Twitter or Facebook, what have you," Lawkowski said.
Trump was sued while serving as president, resulting in the courts ruling against him, saying he often used his Twitter account to make official statements. But the lawsuit was tossed out as moot after he left office in January 2021.
The cases to be heard arise from the conflict in circuit court opinions ––the 6th Circuit on the one hand and the 2nd, 4th, 8th, and 9th on the other.
“The Sixth Circuit took a narrow view that unless the official maintained the social media page because of a duty to do so (say, by statute) or solely as a result of the authority granted to her by reason of office, then the official’s comment–blocking was not state action and did not violate the blocked citizen’s rights,” Robert Nelon of Hall Estill told the Washington Examiner. “The other circuits took a broader view that blocking did amount to state action if the appearance or purpose of the social media page was to allow the official to communicate government–related information to the public.”
O'Connor-Ratcliff will be the first case heard on Tuesday. In California, two elected members of the Poway Unified School District Board of Trustees, Michelle O'Connor-Ratcliff and T.J. Zane blocked two parents, Christopher and Kimberly Garnier, on their personal social media accounts after the parents posted critical comments. The 9th Circuit ruled that this action violated the free speech rights of the parents. Zane is no longer serving on the school board.
The Lindke case involves James Freed, who served as Port Huron's city manager since 2014, used his Facebook page, which he initially created during his college years, for public communication and sharing details of his daily life. In 2020, Kevin Lindke, a resident, posted critical comments on the page using three Facebook profiles, including criticism of the city's COVID-19 response. Freed responded by blocking all three accounts and deleted Lindke's comments. Subsequently, Lindke sued, but the 6th Circuit ruled in favor of Freed. The court noted that Freed's Facebook page encompassed his roles as a "father, husband, and city manager."
The Biden administration has filed briefs backing the officials involved in the case, taking a similar stance as the Trump administration did over Trump's Twitter account.
The Justice Department's solicitor general wrote in court filings that public officials are engaging in state action "merely" when using a private service like a social media platform to take government actions. She contends that the government doesn't control or operate the accounts.
On the other end of the case is the American Civil Liberties Union, which argues in a brief that the public officials in both cases engaged in public, or state action, "when they excluded dissenting constituents from social media profiles that they held out as extension of their public office."
The two cases weighed on Tuesday are part of a group of social media-related free speech issues the court will wrestle with in its current term ahead of its June conclusion.
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Later on, the justices will consider whether to uphold Republican-backed laws in Florida and Texas that would restrict social media companies from banning users for contentious content.
Another oral argument day will be reserved over the Biden administration's actions of pressuring social media platforms to remove certain content, an issue that arose during the height of the COVID-19 pandemic and one that critics have said amounts to government coercion of private companies.