Supreme Court clarifies when public officials can block citizens on social media

Can a public official block constituents on social media?

The U.S. Supreme Court brought clarity to that question on Friday in a pair of unanimous decisions that find public officials can indeed block someone on their personal social media accounts or delete their comments as long as they are not acting on behalf of the state.

Writing for the court, Justice Amy Coney Barrett said that constituents can sue if the public official was given the authority to speak on the state’s behalf on the matter addressed in the posts in question, and if that official exercised that authority in the posts.

The high court did not apply that criteria to the two cases before them, instead sending them back to the lower courts to reconsider.

In both cases, the question before the court was whether a city manager in Port Huron, Michigan, and two trustees of a school district near San Diego violated the First Amendment rights of the plaintiffs.

In the former case—Lindke v. Freed—a lower court had previously found that James Freed, the city manager, did not violate resident Kevin Lindke’s rights when he blocked him on social media and deleted some of his comments that complained about Freed’s handling of the COVID-19 pandemic.

In the opinion, Barrett said that while public officials routinely interact with constituents and “may look like they are always on the clock,” they are also “private citizens with their own constitutional rights.”

“Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own,” Barrett wrote. “The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights.”

While Barrett acknowledged that the lines between public officials at all levels of government using their social media accounts for personal and official use are “often blurred,” an act on social media can only be deemed a governmental action if it can be traced back to the state’s power and authority.

“Private action—no matter how ‘official’ it looks—lacks the necessary lineage,” Barrett wrote, so blocking someone on a personal social media channel is not an action driven by governmental authority.

Instead, Barrett said the plaintiffs should have proven that the alleged censorship that had taken place was connected to speech stemming from Freed’s official duties as city manager.

It might be difficult to determine the scope of a public official’s power, Barrett wrote, and authority over a certain subject area may mean someone has the authority to speak about it in an official capacity. But she said the courts cannot rely on “excessively broad job descriptions” to make those determinations.

“In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State,” Barrett wrote. “That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.”

For activity on social media to be state action, an official must not only have the authority but also be seen to be using it, Barrett wrote, as officials “have a choice about the capacity in which they choose to speak.”

“If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice,” she continued.

Barrett drew on an offline example. If the president of a local school board announces during a meeting the lifting of pandemic-era restrictions, they are acting in their official capacity. If the president then attends a barbecue with friends and shares the same news, they are acting in their personal capacity, not as school board president.

This is where the context of Freed’s speech on social media gets “hazier,” Barrett acknowledged, as his page did not include a disclaimer or a label that his posts and views were strictly his own. As such, one can say his page was “mixed use” between personal and official, Barrett said. Categorizing posts on an ambiguous page can be tricky, Barrett wrote, and their content and function are the most important considerations.

If a post cited specific rules or laws it could make Lindke’s argument about censorship a “slam dunk,” Barrett wrote, as that would indicate the clear exercising of governmental authority. But merely repeating or sharing information that is available elsewhere means it is less likely that someone is exercising their authority on social media.

An official “does not necessarily purport to exercise his authority simply by posting about a matter within it,” Barrett wrote.

The nature of Freed’s actions on social media against Lindke also warrant consideration, Barrett wrote, as deleting comments on specific posts has less “bluntness” than blocking someone from a page altogether. She warned of the possible implications for the future.

“If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts,” Barrett wrote. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

In an unsigned, three-page opinion, the justices simply sent the second case—O’Connor-Ratcliff v. Garnier—back to the lower courts to reconsider the case in light of the court’s findings in Lindke.

In O’Connor-Ratcliff v. Garnier, a lower court judge found that the actions of two trustees of the Poway Unified School District, who blocked two parents after they criticized them on their personal social media accounts, constituted government action.

The plaintiffs, parent Christopher and Kimberly Garnier, argued that the two trustees, Michelle O’Connor-Ratcliff and T.J. Zane, used their accounts to communicate to constituents the actions of the school board, including inviting them to public meetings, asking for comments on issues before the school board and posting photos of themselves visiting classrooms in their official capacity. 

The Garniers frequently commented on the posts and wrote lengthy criticisms of their work, prompting the two trustees to block them.

Groups that represent government officials praised the court’s ruling.

“Today’s Supreme Court ruling helps bring much-needed clarity to local officials with social media accounts,” National League of Cities CEO and Executive Director Clarence Anthony said in a statement. “Unfortunately, some on social media have used the platforms to harass and intimidate public officials. Under the new test laid out by the Supreme Court, public officials have important First Amendment protections of their own when the content they post is not of an official nature.”

This is the first decision on one of several cases before the high court dealing with how the First Amendment applies to social media. Last month, the court heard oral arguments on whether states can regulate social media companies’ ability to moderate content on their platforms.