The US Supreme Court heard arguments in the cases O’Connor-Ratcliff v. Garnier and Lindke v. Freed on Tuesday regarding whether public officials blocking constituents on personal social media accounts used for some public purposes amounts to state action under the First Amendment of the US Constitution.
O’Connor-Ratcliff began in 2014 when two school board members created social media accounts for their political campaigns and continued to use those accounts after winning their respective elections by posting official events and information. After two parents continuously posted long critical statements on the school board members’ social media sites, the members blocked those parents. The parents then alleged that due to the role and usage of the accounts, the blocking amounted to state action and therefore violated their First Amendment freedom of speech rights. The US Court of Appeals for the Ninth Circuit sided with the parents, ruling that as long as the posts were “fairly attributable” to the government role the individuals served in, the block was state action.
During oral arguments, the attorney for the defendants in O’Connor-Ratcliff stated:
The only principles and workable test to determine the capacity in which they [the defendants] acted is to ask whether they exercised the duties or authorities of their job. And the answer is plainly no, whereas here the state itself does not control or even facilitate their operation of the pages. The officials thus wielded no special rights or privileges than any other private citizen denying access to their own property.
The attorney emphasized that the pages had been created by both school board members in their personal capacity prior to election and were thus still personal pages, despite occasional posts for official events.
The plaintiffs’ attorney rejected this argument, claiming that the school board officials are required to keep the public abreast of public meetings as part their role on the school board, therefore making the blocking on the account on which they inform the public a state action. However, attorneys for the defendants responded that even if the pages are official, the blocking is still constitutional, as some minor barriers surrounding speech are constitutionally accepted.
The other case, Lindke, began when a Michigan city manager deleted a comment from a constituent about his handling of COVID-19 regulations, eventually blocking the constituent. The constituent similarly alleged that the blocking amounted to a state action and violated his right to free speech under the First Amendment. The US Court of Appeals for the Sixth Circuit rejected the argument, ruling that the page was not managed as part of the city manager’s official duties.
At oral argument, the attorney for the plaintiffs in Lindke argued that the way the court should determine whether the blocking was state action is to probe “the character of the defendant’s conduct.” The attorney went on to argue that the defendant’s social media page was specifically designed to appear as an extension of the city manager’s public position. The defendant’s attorney responded by arguing that the page was purely personal and created far before he ever served as city manager. His attorney also argued that if the appellate court’s decision was overturned, it would “chill the social media speech of 21 million public sector employees without having any significant benefit to First Amendment rights.”
These cases are not the only social media cases before the court this term, with the court scheduled to hear arguments on state regulation of private social media companies’ moderation policies and whether the federal government should be able to communicate with social media companies about moderation policies.