Can Public Officials Block People On Social Media?
Well... It Depends...
On Friday, the Supreme Court addressed the intricate relationship between public officials, social media, and the First Amendment. The ruling clarified when officials act as state actors on their personal social media accounts, setting a legal test that balances the officials' First Amendment rights with those of their critics.
The Court tackled cases from California and Michigan, where local officials blocked constituents on social media. The pivotal question was whether these officials, by blocking critics, infringed upon the First Amendment rights of those individuals. This issue has gained prominence as social media becomes an essential tool for public officials to communicate with constituents, while blocking those who are posting critical commentary.
Justice Amy Coney Barrett, writing for a unanimous Court, delineated a nuanced approach to determine when an official's actions on social media constitute state action.
The Court's decision rested on whether the official had the authority to speak on the state's behalf and was exercising that power in the posts that led to the blocking.
In O’Connor-Ratcliff v. Garnier1, the Ninth Circuit found that two school board members violated the First Amendment by blocking parents from their personal social media accounts, which were used to disseminate information about school board activities.
Conversely, in Lindke v. Freed2, the Sixth Circuit concluded that James Freed, a city manager, did not act as a government official when he blocked a critic from his personal Facebook page, suggesting no First Amendment violation occurred.
Justice Barrett emphasized that the nature of social media complicates the determination of whether an official's post can be attributed to the government. She outlined a fact-specific approach focusing on the content and function of the post. Barrett further noted that technological features, like the ability to delete comments or block users, play a role in assessing whether an action constitutes state behavior.
Specifically, blocking someone from a mixed-use social media page, containing both personal and official posts, could inadvertently restrict access to government communications, increasing the official's liability.
The Test:
The Supreme Court established a legal test to determine when a public official's actions on social media constitute state action, which is subject to the First Amendment. This test requires examining two critical factors:
Authority to Speak on Behalf of the State: The official must have the actual authority to speak on behalf of the state on the matter in question. This criterion assesses whether the public official is in a position that allows them to represent the government in their communications. It distinguishes between the personal opinions of the official and those statements or actions taken in their official capacity.
Exercise of That Authority: The official must have purported to exercise that authority in the relevant social media posts. This means that for a post (or action, such as blocking someone) to be considered state action, the official must have been acting within the scope of their governmental role when making the post or taking the action. The content and function of the post are crucial in this determination, focusing on whether the post serves a governmental purpose or disseminates information related to the official’s duties.
The cases were remanded back to the lower courts to apply this test.
This ruling is part of a broader examination by the Supreme Court of the intersection between government action and social media. It precedes anticipated decisions on related issues, such as state laws regulating social media platforms and allegations of First Amendment violations by the federal government in content moderation. These forthcoming decisions will further define the boundaries of free speech in the digital realm.
What Now?
To circumvent potential legal issues related to social media use, the most straightforward strategy for public officials is to maintain distinct accounts for their official and personal roles. An official account should be used exclusively for matters pertaining to their governmental duties, ensuring that any moderation of comments adheres to the constraints of constitutionally protected speech. This approach safeguards the forum as a public space for citizen interaction and critique, aligning with First Amendment principles.
Simultaneously, officials can keep a separate personal online presence for sharing non-governmental content. If public concerns that fall within their official remit arise and need to be shared on their personal platforms, it is prudent to direct these matters through the official account.
This bifurcation not only preserves the integrity of public discourse on governmental issues but also grants officials the freedom to manage their personal social media spaces as they see fit, provided they maintain an accessible, official channel for public engagement and redress.
This method ensures a clear demarcation between personal viewpoints and official communications, mitigating the risk of First Amendment challenges while maintaining open lines of communication with the public.
O’Connor-Ratcliff v. Garnier, No. 19-56035 (9th Cir. 2021), involved a dispute where two elected school board members from the Poway Unified School District in California were sued for blocking parents from their personal social media accounts. The parents, Christopher and Kimberly Garnier, alleged that their First Amendment rights were violated when they were blocked after making critical comments on posts related to school board matters. The U.S. Court of Appeals for the Ninth Circuit held that the school board members' actions of blocking the parents constituted a violation of the First Amendment, finding a "close nexus" between the board members' use of their social media pages and their official positions.
Lindke v. Freed, No. 20-2146 (6th Cir. 2021), centered on a lawsuit against James Freed, the City Manager of Port Huron, Michigan, who was accused of violating the First Amendment by blocking a resident, Kevin Lindke, from his public Facebook page. Lindke had posted critical comments on Freed's page regarding the city's response to the COVID-19 pandemic. The U.S. Court of Appeals for the Sixth Circuit ruled in favor of Freed, determining that he was not acting in an official capacity when he blocked Lindke. The court found that Freed's Facebook page, although it contained some posts related to city affairs, was maintained personally by Freed and not as a part of his city manager duties. Consequently, his decision to block Lindke did not constitute state action and, therefore, did not infringe upon Lindke's First Amendment rights.