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High court weighs whether officials may block critics on social media

The Supreme Court on Tuesday will consider a pair of cases involving the social media accounts of public officials, with First Amendment implications for how politicians interact with constituents who post critical comments.

The cases present a fresh opportunity for the justices to decide whether public officials — in this case, two school board members in California and a city manager in Michigan, — can block individual critics from social media accounts that are increasingly used at all levels of government to communicate with citizens.

The high court did not take up a 2021 case in which a lower court ruled former president Donald Trump could not ban critical voices from his feed on Twitter, now X. After Trump lost reelection, and Twitter canceled his account, the Supreme Court vacated the appeals court decision, saying the matter was moot.

The cases that will be argued Tuesday involve similar legal questions and are part of a set of legal controversies the justices will untangle this term that will clarify the future of speech on social media platforms.

“The court obviously wants to help shape this debate,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, which represented the individuals Trump blocked on Twitter. “Each of these cases is important in its own right, but collectively they really are going to have a quite dramatic impact on the digital public sphere. They are going to determine how much power the government has as a speaker and as a regulator of this space in which so much political discourse now takes place.”

Last term, the justices sidestepped a broad ruling in a case involving Google, Twitter and Facebook that could have limited a legal provision that protects social media platforms from lawsuits over harmful or offensive content. This term, the court is poised to confront how the First Amendment applies in the evolving digital context in several additional cases.

At issue on Tuesday is whether and when public officials are acting in a government capacity when maintaining their own social media accounts and blocking constituents from viewing or responding to their posts. If they are engaged in “state action,” the First Amendment generally restricts officials from barring critics or censoring unfavored viewpoints. Not so if the officials are operating as private individuals.

A key question for the court is how to distinguish between the two.

The Biden administration has backed the government officials in both cases, saying they had the right to block users from their private accounts — a type of private property — because they were not acting in an official capacity on behalf of the government. Solicitor General Elizabeth B. Prelogar cautioned the justices against a broad ruling that would “transform communications in private spaces into official action.”

“Subjecting large amounts of the speech of public officials and employees to constitutional restrictions could make those officials and employees less willing to speak in the first place. That sort of chilling effect would thus reduce, not enhance, free speech and public discourse,” Prelogar wrote in a court filing.

The American Civil Liberties Union sided with the citizens whose comments were blocked online, urging the court not to allow public officials to exclude constituents from digital spaces because they have expressed critical views.

In the first case, a Southern California couple sued a pair of school board members after they were blocked from the officials’ Facebook pages. Christopher and Kimberly Garnier, whose children attended the public schools, regularly posted critical messages.

The U.S. Court of Appeals for the 9th Circuit sided with the Garniers in a broad decision that said the action of the school board members could be attributed to the government because of the appearance and content of their pages. The board members, Michelle O’Connor-Ratcliff and T.J. Zane, regularly posted about school board meetings, surveys related to school district policy, the budget and public safety issues. Zane’s page included a photo of a Poway Unified School District sign. O’Connor-Ratcliff labeled herself a government official on her page and provided a link to her school system email address.

“Both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public” about their work, the appeals court wrote last year.

An attorney for the board members said courts cannot limit the editorial discretion and First Amendment rights of public officials on their private accounts. The Garniers, the lawyer said, had spammed the officials’ accounts with repetitive, lengthy comments, leaving the same comment, for instance, on 42 different posts.

“Rather than facilitating more speech by the public, the decision below will lead to self-censorship by citizens who are also officials,” Hashim M. Mooppan told the justices in a court filing.

In the second case, a different appeals court reached the opposite conclusion based on a narrower test for evaluating the social media activity of elected officials.

The U.S. Court of Appeals for the 6th Circuit held that a public official’s social media activity is only state action when the official is performing an actual duty of the office or if state funds or a state employee is being used to operate the account.

In that case, the city manager of Port Huron, Mich., was sued after he blocked a constituent’s critical comments in response to a Facebook post about the city’s coronavirus pandemic policies. Kevin Lindke said city manager James Freed violated the First Amendment when he deleted Lindke’s comments and blocked his account.

The appeals court, however, sided with Freed, who described himself on his Facebook page as a father, husband and city manager and listed the city’s website and general email as his contact information. Although Freed posted about city affairs, the overall content on the page he created before his appointment as city manager tended toward family activities, according to court filings.

When an official “visits the hardware store, chats with neighbors, or attends church services, he isn’t engaged in state action merely because he’s ‘communicating’ — even if he’s talking about his job,” the appeals court wrote last year.

When the Supreme Court vacated the decision involving Trump’s Twitter account in 2021, Justice Clarence Thomas wrote separately to say that the court would at some point need to examine the power of tech companies. Thomas said that some aspects of Trump’s account “resemble a constitutionally protected public forum.” But the justice seemed more concerned about the power of private companies to remove content, rather than individuals.

“If the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves,” Thomas wrote. “As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms.”

The cases are O’Connor-Ratcliff v. Garnier and Lindke v. Freed.

This post appeared first on The Washington Post

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