The Supreme Court ruled Friday that members of the public in some circumstances can sue public officials for blocking them on social media platforms, deciding a pair of cases against the backdrop of former President Donald Trump’s contentious and colorful use of Twitter.
The court ruled unanimously that officials can be deemed "state actors" when making use of social media and can therefore face litigation if they block or mute a member of the public.
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In the two cases before the justices, they ruled that disputes involving a school board member in Southern California and a city manager in Michigan should be sent back to lower courts for the new legal test to be applied.
In a ruling written by Justice Amy Coney Barrett, the court acknowledged that it "can be difficult to tell whether the speech is official or private" because of how social media accounts are used.
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The court held that conduct on social media can be viewed as a state action when the official in question "possessed actual authority to speak on the state's behalf" and "purported to exercise that authority."
While the officials in both cases have low profiles, the ruling will apply to all public officials who use social media to engage with the public.
During October's oral argument, Trump's use of Twitter — before it was renamed X — was frequently mentioned as the justices considered the practical implications.
The cases raised the question of whether public officials’ posts and other social media activity constitute part of their governmental functions.
In ruling that it can, the court found that blocking someone from following an official constitutes a government action that could give rise to a constitutional claim under the Constitution's First Amendment, which protects free speech.
But the court made it clear that conditions have to be met for a claim to move forward, with Barrett noting that government officials are also "private citizens with their own constitutional rights."
Determining whether a claim can move forward is not based simply on whether the person is a government official, but on the substance of the conduct in question, she added.
Factors such as whether the account is marked as official and the official is invoking his or her legal authority in making a formal announcement can be taken into account, Barrett said.
"In some circumstances, the post's content and function might make the plaintiff's argument a slam dunk," she added
Trump himself was sued when he was president, with the courts ruling against him, noting that he often used his Twitter account to make official announcements. But that lawsuit was tossed out as moot once he left office in January 2021.
At that point, Twitter had disabled Trump’s account, although the company’s new owner, Elon Musk, has reversed course as part of a major overhaul that has included changing the site’s name. In other disputes, however, courts have reached other conclusions.
It appears likely that Trump would have lost the earlier lawsuit based on the new legal test.
Barrett briefly referred to Trump's case in a footnote, pointing out that when an X user blocks someone, the blocked person cannot see any of the user's posts, including those that feature official announcements.
"Even under the court’s new test, we would have won our case against Trump, who regularly used his Twitter account to announce official policy and whose White House staff helped him run the account," said Katie Fallow, a lawyer at the Knight First Amendment Institute at Columbia University, which had sued Trump.
The ruling was largely welcomed by legal experts across the ideological spectrum.
Evelyn Danforth-Scott, a lawyer with the liberal American Civil Liberties Union, said the ruling "underscores that the First Amendment restricts how the government can shape speech that takes place on social media."
In a similar vein, Thomas Berry, a research fellow at the libertarian Cato Institute, said the decision "strikes a reasonable balance between the general public’s right to access official state communications and the rights of government officials to exercise their own private speech."
The California case arose after two members of the Poway Unified School District Board of Trustees, Michelle O’Connor-Ratcliff and T.J. Zane, blocked parents Christopher and Kimberly Garnier from commenting on their Facebook page in 2017. O’Connor-Ratcliff also prevented Christopher Garnier from responding to her Twitter posts. Zane has since left office.
The San Francisco-based 9th U.S. Circuit Court of Appeals in 2022 ruled for the couple, upholding a similar decision by a federal judge in the Southern District of California. The appeals court concluded that the elected officials were acting in their official capacities.
The dispute in Michigan began in March 2020, when Port Huron City Manager James Freed, an appointed official who described himself on his Facebook page as a “public figure,” posted information there about the city’s efforts to deal with the Covid pandemic. After resident Kevin Lindke posted comments criticizing the city’s response, Freed blocked him.
Freed argued that the no-longer-active Facebook page was a personal page that he used to share pictures of his family and comment on his daily activities. The 6th U.S. Circuit Court of Appeals, upholding a lower court decision, agreed in June 2022 that Freed was not acting in his official capacity and that therefore his Facebook activity did not constitute state action.
Freed’s page was somewhat different from the ones at issue in the school board case because it included a lot more personal content, making it much less clear whether it was an official page.
The court is wrestling with a whole series of social media-related free speech issues in its current term, which runs until June.
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