The U.S. Supreme Court will determine whether blocking critics from personal social media accounts also used for official communication with the public constitutes state action and violates the First Amendment.
The court took up two appeals last week that address a legal question left unresolved in a previous case involving former President Donald Trump’s Twitter account.
The first case, O’Connor-Ratcliff v. Garnier, involves two members of a California school district, the Poway Unified School District Board of Trustees, who used personal public Facebook and Twitter accounts to communicate with the public about official business matters related to the board and the district. The board members created the pages before they were elected and used them as campaign tools. They also had private social media accounts where they posted to family and friends. Parents of children attending schools in the district were blocked from board members’ social media accounts after they criticized board members’ posts and responded with numerous repetitive replies and hundreds of comments.
The parents sued the board under 42 U.S.C section 1983, claiming that blocking them constituted a “state action” that deprived parents of their First Amendment freedom of speech rights. The district court and the 9th U.S. Circuit Court of Appeals agreed.
The justices will have an opportunity to define when an official’s social media account should be considered personal and when it should be considered a governmental function.
The appeals court held that although it is undisputed that the board members were not posting pursuant to any governmental authority or carrying out any governmental duty, and they created and maintained their social media pages without any district funding or other support, they used their pages to communicate with the public about “events which arose out of their official status,” including matters they had the ability to discuss only “due to their positions.” Despite that, the court said, the board members’ continual blocking of the parents’ comments and replies was “not adequately tailored to an appropriate government interest.”
In Lindke v. Freed, James Freed, the Port Huron, Mich., city manager, blocked Kevin Lindke from his Facebook account and deleted his critical comments. Freed created his Facebook account as a college student and maintained it over the years as his personal account. Before he was hired as a city manager, he converted his personal Facebook account to a public figure page. He posted family pictures and events as well as his press releases and other information as city manager.
Lindke began criticizing Freed on other Facebook accounts, then began posting critical comments about Freed on Freed’s personal Facebook page. Freed deleted the comments and eventually blocked Lindke from his page entirely. Subsequently, Facebook deactivated and reactivated his page several times, and Freed eventually decided to unpublish his page because he did not want a page he could not manage. Before Freed unpublished his page, Lindke filed suit under Section 1983 alleging Freed’s deletion of his comments and subsequent blocking constituted state action and violated his First Amendment rights. Freed argued that there was no state action under Section 1983. The district court and the 6th Circuit Court of Appeals agreed with Freed.
The appeals court held that social media activity may be considered a state action when it is part of the officeholder’s actual or apparent duties, or couldn’t happen in the same way without the authority of the office. The court then determined that there was no law or ordinance requiring Freed to have a Facebook page, that operating a Facebook page was not a requirement of his job as city manager, and that no government funds were used to operate the page. It rejected Lindke’s argument that Freed’s personal page communicated with the public about his job and duties as city manager, holding that “[w]hen Freed 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.”
With many elected officials using social media, these cases will give the Supreme Court an opportunity to resolve this difference of opinion at the circuit court level and define when an official’s use of social media should be considered personal and when it should be considered a governmental function.
The court may consolidate the cases, with a decision expected next year.
Susan Frederick is the senior federal affairs counsel in NCSL’s State-Federal Relations Program.