Legal Docket: Facebook and the First Amendment

NICK EICHER, HOST: It’s Monday morning November 6th and a brand new work week for The World and Everything in It. Good morning! I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. It’s time now for Legal Docket.

AUDIO: And we have a big, breaking story today. Many of you probably heard that Port, little Port Huron, the city of Port Huron, is going to the Supreme Court.

EICHER: Audio from a TV show produced in Port Huron, Michigan. A town with a population less than 30-thousand generating a case that’s going to the Supreme Court.

ROUGH: And it stems from an action taken by the city manager of Port Huron a local official who got fed up with a persistent citizen activist posting negative comments on Facebook. The City Manager had heard enough, so he blocked the complaining citizen.

EICHER: But in so doing, did he violate the First Amendment? It’s a little surprising we’re only now testing the question at the Supreme Court, because as long as we’ve had social media, it seems, we’ve had political brawls. But now the issue is ripe, and it’s not just Michigan. There’s also a case from California, and they’ll both be considered.

Together they will answer the question: When can a public official block someone on social media?

ROUGH: Last week the Supreme Court heard oral arguments in both cases. And WORLD Associate Correspondent Jeff Palomino has our report.

JEFF PALOMINO, REPORTER: Let’s say you are a concerned citizen. You’ve become aware of something you think is a problem in your community. You want to make your opinion known, but how best to communicate with public officials? You turn to social media. You find your public official on Facebook or X, as Twitter is now known … and express your views there. 

But what happens if the government official you’re talking to doesn’t like what you say? What if he deletes your comments? What if he blocks you from their page? 

This is exactly what happened to Kevin Lindke of Port Huron.

He claims that City Manager James Freed violated his right to say what he had to say about what was going on.

But to prove he violated the First Amendment, the public official has to be shown to have engaged in state action. 

Meaning Freed’s actions must be fairly attributable to the State. Not something he did in his personal capacity. 

By the time this case got through the appellate stage … one federal appeals court—the Sixth—had created one test to define “state action.” But a different appeals court—the Ninth—had created a different one.

JUSTICE NEIL GORSUCH: In both cases, we have a profusion of possible tests to choose among.

That’s Justice Neil Gorsuch … he and his colleagues on the Supreme Court have to choose which test will prevail.

Now, a quick review of the facts in both cases. The Sixth Circuit case is Lindke v. Freed. City Manager Freed used his Facebook page to talk about his passions and interests, including his daughter, his wife, his dog, his work, and his favorite Bible passages. But he also posted some administrative directives he issued as city manager. And when the pandemic hit in 2020, he shared policies issued for Port Huron. That’s the case we’ve been talking about.

The Ninth Circuit case is O’Connor-Ratcliff v. Garnier. School board members created public Facebook and Twitter pages to promote their campaigns. After they won the election, they continued to use the platforms. They posted little of a personal nature. Instead, most of the information was about school-district business and news. 

Christopher and Kimberly Garnier were parents in the district and they frequently left critical comments on these pages. So, the school board members blocked them.

At oral argument, attorney Allon Kedem argued for Lindke in the Port Huron case. He proposed the first test for state action. 

That test I’ll call the “Channel of Communication” test. Here’s how he explained it.

ALLON KEDEM: Under our test for state action, a public official who creates a channel for communicating with constituents about in-office conduct and then blocks a user from that channel must abide by the Constitution. This test, which focuses on how the public official is using and purporting to use that account, is consistent with this Court's precedent under which a public official who purports to act in that capacity is a state actor.

The problem with this test is that most of the city manager’s posts were personal. Justice Alito wanted to know when a personal page transforms to a public one.

JUSTICE SAMUEL ALITO: what if 95 percent of the posts are personal and 5 percent of the posts involve discussion of his work?

KEDEM: So it would obviously be a more difficult argument for us to make, but if there's only one place to go to interact with the city manager about directives that he himself had issued, that doesn't change the fact that if you get blocked off from that page, you're suddenly losing access to a lot of information.

But Justice Alito wasn’t sure about that line. How low did it go?

ALITO: but if it's like 1 percent, one-half of 1 percent, it's not? Is that what you're saying?

KEDEM: So it's not a quantitative test. It's qualitative.

Justice Gorsuch asked Kedem what if the citizen harassed the public official about the personal posts. What if he harrasses him about his cat pictures? Is that state action?

KEDEM: So I think it could be in the exact same way that it could be if, for instance, you were on an official page of the town and you were being harassing. At some point -

JUSTICE GORSUCH: No, no, all the harassing in my hypothetical has to do with cats.

KEDEM: No, I understand.

JUSTICE GORSUCH: The commenter hates cats.

KEDEM: Sure.

JUSTICE GORSUCH: --cats.

MR. KEDEM: Sure. And -

JUSTICE GORSUCH: And maybe he hates your children too, I don't know.

(Laughter.)

JUSTICE GORSUCH:  But --but if I block that person for that, at some point, you know, even though it's all my personal stuff, that's state action?

Kedem said it would be state action but gave reasons why a lawsuit like that might fail. 

Lawyer Pamela Karlan proposed the second test for state action. She represented the parents in the California case, the ones who sued the school board members. 

I’ll call her test the “doing their jobs” test. She explains it to Justice Alito.

ALITO: Your test is whether government officials are doing their jobs, right?

PAMALA KARLAN: That's the starting point, and it creates what I would say is a kind of rebuttable assumption that when a government official is doing her job, she is a state actor.

Justice Alito pressed with a hypothetical. A city mayor is in the grocery store where he’s repeatedly approached by constituents. He really doesn’t want to be bothered, but he listens to comments by supporters and people sympathetic to his policies.

ALITO: 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: When they're clearly off duty, that is, you know, pushing the shopping cart down the aisle, arguably, they're not doing their job. But, when they create an ongoing site like the site here, they maintain a forum, if you will...

For Karlan, people are also doing their jobs when they do things the job legally requires. As evidence, she cited various laws, including the California school district’s own by-laws, that said receiving feedback from constituents was an important part of school board members’ duties. She explains, this is what these board members did on Facebook and Twitter.

KARLAN: And here what you have is both of the Petitioners using "we" and "our" when they talked about what the Board is doing and anybody who looks at that is going to think: This is an official website. It looks like an official website. It performs all the functions of an official website.

Those are the tests proposed by the people who were blocked. But what about the government officials who did the blocking? The officials in both cases agreed on their tests. 

This third test I’ll call the “duty and authority” test. To see if an official engaged in state action the Court must look at those two things. Here’s Hashim Mooppan for the school board members.

HASHIM MOOPPAN: if there is neither the exercise of duty nor authority, that's not state action...Now that raises the further question of: Well, how do you know whether there are duties and authorities? At that point, we're not talking about a test. We're talking about how to implement the test. And I think the things that the Court should be looking at are objective indicia that are capable of disentangling the two capacities.

Objective indicia … like use of government resources to maintain the page, whether a person's boss could tell him what to do on the page, or whether the official was exercising exclusive duties. Sounds easy, but the Court spent a lot of time trying to define both terms. 

Here’s Justice Amy Coney Barrett.

JUSTICE AMY CONEY BARRETT: I think it's very difficult when you have an official who can in some sense define his own authority. So I think, for a governor or, you know, President Trump, it's a harder call than someone like a police officer, who's a subordinate. Or I could --you know, my law clerk could just start posting things and say this is the official business of the Barrett chambers, right? (laughter.) And --and that wouldn't be okay. But if, you know, the --that wouldn't be okay. (laughter.)

Defining “duty” was also a problem. Should it be broadly or narrowly defined? Justice Sonia Sotomayor explained her position.

JUSTICE SONYA SOTOMAYOR: Every elected official tells me that they're on duty 24 hours a day. And so, if they are during that 24 hours creating, themselves, and posting the Facebook and doing all of the communications they're doing, why isn't that state action?

The U.S. Solicitor General filed friend of the court briefs and argued on behalf of the city officials in both cases.

She agreed “duty and authority” was the correct test, but added one element. In close cases, the Court should look to the nature of the property involved. Only if it’s government property would there be state action. 

Justice Elena Kagan expressed doubt about that. Social media has changed the way we communicate. And continues to.

JUSTICE ELENA KAGAN: And part of that change is that more and more of our government operates on social media. More and more of our democracy operates on social media. And I worry that the rules that you're suggesting is really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy if the kind of rule you're advocating goes into effect.

And therein lies the tension. 

One one side, a broad test that finds almost anything to be state action risks trampling the rights of millions of government employees. It would also risk waves of litigation and an outcome that instantly makes most speech subject to government control. 

On the other side, social media is one of the most powerful mechanisms for private citizens to say what they need to say, as the musician John Mayer might put it.

So, a test that’s too narrow risks cutting people off from their government.

In these cases, I predict the court will - to use the words of Justice Gorsuch from oral argument - “coalesce” around the “duty and authority” test with debate among the Justices over how wide that test is. 

The eventual ruling will likely mean the California school board members engaged in state action but leave room for no state action by City Manager Freed. After all, even public servants need to say what they need to say, too.

And that’s this week’s Legal Docket!

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