The social dilemma of public officials

Two ongoing Supreme Court cases could determine if public officials can block critics on social media.

Last week, the Supreme Court listened to arguments for O’Connor-Ratcliff v. Garnier and Lindke v. Freed. The cases made it to the Supreme Court after two federal appeals courts issued opposing rulings on the topic.

In O’Connor-Ratcliff, the U.S. Court of Appeals for the 9th Circuit held in 2022 that two members of a Southern California school board violated the First Amendment when they blocked two parents who continually criticized them on the members’ social media pages.

In Lindke v. Freed, the 6th Circuit ruled in 2022 that the city manager of Port Huron, Mich., was not acting on behalf of the government when he blocked a citizen who criticized him on his social media page.

Both cases center on whether a public official’s use of social media is a public governmental action or a private action, said Bob Corn-Revere, chief counsel at the legal organization Foundation for Individual Rights and Expression. The internet is still a relatively new medium of communication, raising questions on how public officials are allowed to interact with citizens online.

“Public officials at all levels use social media in one way or another,” Corn-Revere said. “The question is whether or not the way it is being used should permit a public official, whoever it is, to simply block comments or commenters they don’t like.”

One side of the argument states that public officials’ accounts are private and personal—they can block who they want, Corn-Revere said. The other side contends that the accounts are a function of the government and that blocking people from accessing them would violate the First Amendment. Corn-Revere said he expects the justices to release the rulings sometime next spring.

In the oral arguments at the Supreme Court last week, the justices disputed exactly when public officials act on behalf of the government on social media and what tests could be used to define this. Justice Neil Gorsuch said they had a “profusion of possible tests.”

Representing the California school board members, lawyer Hashim Mooppan argued that if public officials “exercised any duties or authorities of their job” on social media, then they are acting on behalf of the government, he said.

Mooppan emphasized that the school board members are still private citizens, and when acting in a personal capacity have their own First Amendment rights to block people online. However, if they act in an official capacity, they then lose that right, he said.

Justice Elena Kagan pushed Mooppan about what the broader implications of this test would be. She cited former President Donald Trump’s actions to block critics on X, formerly known as Twitter, and asked if he could have been held liable for violating the First Amendment.

The U.S. Supreme Court almost evaluated this question in 2021 when it threw out a lower court ruling against the former president in a lawsuit brought by several people whom he had blocked.

Kagan noted that Trump did “a lot of government on his Twitter account,” and even occasionally announced policies there. His account, Kagan said, “was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”

Kagan added that there are First Amendment interests on both sides, protecting the rights of officials but also “enabling citizens to access” their government. “That’s what makes this case hard, is that there are First Amendment interests all over the place,” she said.

Masha Hansford, assistant to the U.S. solicitor general, argued on behalf of Port Huron’s government and city manager that officials’ social media actions should be evaluated on the ownership of the accounts. Hansford said that the city manager’s social media page is privately owned and that he had it long before he took on his governmental role, reasoning that because of this, the account is for personal use, not state actions.

However, Justice Samuel Alito challenged that it is “quite artificial” to use ownership as a test to determine what is state action or not.

Kagan said that part of the challenge in choosing a test is that social media will change significantly in the years to come. “More and more of our government operates on social media. More and more of our democracy operates on social media,” she said. “It’s a big-picture challenge about the nature of the world we live in and … the need for rules that are going to meet a world that we don’t really have any idea what it will look like.”