The U.S. Supreme Court on Monday agreed to hear two appeals that ask if government officials who use individual social media accounts to communicate about job-related matters can block users or if doing so is prohibited by the First Amendment.
The two cases ask the court to settle what social media activity can be considered state action as a growing number of government officials use platforms to communicate with constituents and the community.
The first case, O’Connor-Ratcliff et. al. v. Garnier et. ux., comes to the Supreme Court from the 9th Circuit Court of Appeals. Christopher Garnier and Kimberly Garnier are the parents of children who go to school in Poway Unified School District in California.
Michelle O’Connor-Ratcliff and T.J. Zane are elected members of the school district’s board and use personal Facebook and Twitter accounts to communicate to the public about school board information. The use of their personal social media accounts to communicate about the school board isn’t required by the district and they operate the accounts without support from the district.
Zane and O’Connor-Ratcliff blocked both Christopher Garnier and Kimberly Garnier on Facebook and Twitter after the couple spammed posts with comments including replying with the same comment on 42 different posts and 226 Tweets, according to board member’s petition for certiorari review.
The Garniers sued Zane and O’Connor-Ratcliff claiming that blocking them from commenting on their Facebook and Twitter pages, which they argued are public forums, deprived them of their First Amendment rights. A federal district court agreed and held blocking the couple was content-neutral but the continued blocking wasn’t tailored to an appropriate interest. The 9th Circuit affirmed in July 2022 and held that while the board members didn’t receive any support from the district to run the accounts, “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties.”
The second case, Lindke v. Freed, comes from the 6th Circuit Court of Appeals. James Freed was appointed city manager for Port Huron, Michigan, in 2014 and used a personal Facebook profile which he later made a page to communicate with constituents. Freed turned his profile into a page after he hit the 5,000 friend limit for profiles and was classified as a public figure. He used the page to post information about city programs and news.
During the start of the COVID-19 pandemic, Freed used his account to communicate public health information. Kevin Lindke, a resident of the city, starting in March 2020 commented on the Facebook page from multiple accounts criticizing the city’s response to the pandemic. Freed deleted the comments and blocked each account from viewing his page.
Lindke sued Freed alleging his First Amendment rights were violated. A federal district court ruled against him and found the Facebook page wasn’t state action and wasn’t subject to First Amendment scrutiny. The 6th Circuit affirmed in June 2022, creating a circuit split in finding that the page could be subject if the government official’s social media activity is part of governmental duty invoked by state authority. Lindke appealed to the U.S. Supreme Court.
The U.S. Supreme Court granted certiorari review in its April 24 list of orders.
The court will consider if, and under what circumstances, a public official’s personally operated social media account and activity can be considered state action subject to the First Amendment scrutiny.
The 6th Circuit’s ruling was the first federal appellate court to apply a “duty-or-authority” test to determine state action in such cases, requiring a public official’s operation of a social media account to rely on governmental authority or carry out governmental duty to be subject to First Amendment scrutiny.
The 9th, 4th, 2nd and 8th Circuits have adopted a broader test that considers if an account has an official appearance and serves the purpose of informing the public of official business.
This week is the last oral arguments of the 2022 term so the cases will likely be argued before the court in the fall.