Social media cases hinge on definition of what amounts to state action online

The U.S. Supreme Court heard oral arguments on Tuesday in a pair of cases that will decide if a public official can block critics on social media. With many elected officials using the platforms, a decision could settle a difference of opinion in the lower courts and define when a public official’s use is personal and when it’s a governmental function.

The case also may have implications for the First Amendment, and the extent to which public officials’ actions are protected on social media, while balancing the needs of their constituents to communicate freely with government officials.

In the two cases—O’Connor-Ratcliff v. Garnier and Lindke v. Freed—lower court judges reached two different conclusions regarding whether public officials can be held liable for blocking constituents from their personal social media accounts.

In the former case, a judge found that the actions of two trustees of the Poway Unified School District near San Diego, who blocked two parents after they criticized them on their personal social media accounts, constituted government action. A lower court reached a different decision in the latter case, and found that James Freed, the city manager of Port Huron, Michigan, did not violate resident Kevin Lindke’s rights when he blocked him on social media.

Like the lower court judges in the two cases, the justices also appeared to be struggling to differentiate between personal and professional.

Much of the debate focused on the core question of whether a public official’s posts on a personal social media page can be deemed to constitute a state action, done in the furtherance of government business. In other words, is posting about upcoming meetings, calling for public comment about proposed legislation or reminding residents about a change in recycling rules an official action on behalf of the government? And can blocking someone from an account be considered a state action?

Hashim Mooppan, an attorney at Jones Day who represents the Poway school district trustees Michelle O’Connor-Ratcliff and T.J. Zane, argued that any private citizen could use social media to help connect residents with governmental services and information, and that the pair of trustees were doing that in their personal capacity and using no government resources to do so.

But Pamela Karlan, an attorney at the Stanford Law School Supreme Court Litigation Clinic who represents the two parents blocked by the trustees, rejected that assertion. She argued the trustees used their social media pages “as a tool of governance,” even though they also contained some personal content. She pointed out that most of O’Connor-Ratcliff’s posts were of her visiting classrooms during instructional time, something only an elected official is allowed to do.

Karlan further argued that by blocking the parents, the trustees were denying them access to important information about the public school system that's only available on these trustees' pages.

Justice Samuel Alito asked Karlan why this was different from a mayor at a grocery store telling a constituent to contact his office: 

“The mayor listens to—really doesn't want to be bothered—but listens to supporters and people who are sympathetic to the mayor's program, but when somebody who is a known opponent approaches the mayor, the mayor says, ‘Look, please call my office.’ Is the mayor doing his job when he's doing that?”

Karlan responded that when a mayor is “pushing the shopping cart down the aisle,” he is not on duty. “But, when they create an ongoing site like the site here, they maintain a forum, if you will, in which people can comment and people can talk to each other, they're not just talking to the mayor, then, yes, that would be state action,” she said.

In Lindke v. Freed, the justices continued to circle around this question, debating whether a social media page can be viewed as personal or professional based on how much content of each type is posted. But Chief Justice John Roberts seemed to reject that idea saying that any effort to “disentangle the two things doesn't really reflect the reality of how social media works.”

A central issue in both cases is the First Amendment. The plaintiffs accuse the government officials in these complaints of undermining their free speech, while the public officials argue that they are merely exercising their constitutional rights and should not be overly restricted from using social media in ways that others do.

Even in debating the First Amendment issue in the two cases, the justices struggled to differentiate between when use is personal and when it is a governmental function.

“To the extent that we're having a problem or at least I'm having a problem, it's because we can't identify whether this particular action is occurring in one world rather than the other,” said Justice Ketanji Brown Jackson.

In a bid to distinguish when a public official is acting in their personal capacity, there was some debate about whether a written disclaimer might be needed, or that pages should be designed in a certain way to indicate they are official.

Mooppan called such a requirement a “trap for the unwary.”

“There are lots of government officials in this country,” he said. “They are probably not all going to read this court's decision. And if you adopt a rule that the only way they can exercise their rights … to exclude people from their personal property is to include a disclaimer, some of those people aren't going to do it and they're going to lose their First Amendment rights.”

“This is a case where there are First Amendment interests on both sides,” said Justice Elena Kagan. “Just as there may be First Amendment interests in protecting the private speech of government employees, there are also First Amendment interests in enabling citizens to access the important parts of their government.”

Indeed, Victoria Read Ferres, an attorney for Freed, warned of “uncertainty and self-censorship” for government officials if they have to think about what they post on social media for fear of running into more litigation. And Karlan warned of “devastating consequences” for the public if they are denied access to sites where officials are talking to them.

The discussion has echoes of a 2017 case brought against former President Donald Trump, which found that public officials’ social media accounts can be deemed “public forums” under the First Amendment. Katie Fallow, a senior counsel at the Knight First Amendment Institute at Columbia University, said these cases have similar implications.

“With more officials using social media accounts as forums for debate and civic engagement, the Supreme Court should confirm that the First Amendment protects the rights of people to speak in these forums regardless of their views,” she said in a statement.

Decisions in both cases are expected by the summer.