The U.S. Supreme Court has agreed to review two apparently conflicting lower court decisions involving the question whether public officials are acting in their capacity as government officials when they block critics on their personal social media accounts. If so, this would implicate the First Amendment of the U.S. Constitution, which protects the right of free speech from governmental action. Social media websites like Twitter and Facebook are, for many, a principal source for learning about current events and engaging in debates. Unsurprisingly, public officials rely on social media both to promote their campaigns and to communicate with the public. Although social media can be a powerful tool for constituents to provide public officials with feedback, the rights of social media users to access and respond to posts by public officials on their private accounts have not been well defined. The issue is now before the Supreme Court in two different lawsuits: O’Connor-Ratcliff v. Garnier, decided by the U.S. Court of Appeals for the Ninth Circuit, and Lindke v. Freed, decided by the U.S. Court of Appeals for the Sixth Circuit.
In O’Connor-Ratcliff, two members of a southern California school board created public Facebook and Twitter pages to promote their campaigns for office. After they won and assumed office, the two used their public social media pages to inform constituents about developments at the School District, to invite the public to Board meetings, to solicit input about Board decisions, and to communicate with parents about issues of safety. Two parents of children in the district frequently left critical comments, sometimes posting the same long criticisms. The board members eventually blocked the parents from their social media pages. According to the Court of Appeals, even assuming the board members were attempting to enforce a content-neutral rule against repetitive comments, the decision to block was not sufficiently tailored to a significant governmental interest. Thus, the court ruled that the actions of the board members constituted government action, and that they violated the parents’ First Amendment rights by blocking them from their social media pages.
In contrast the Court of Appeals in Lindke v. Freed concluded that a city manager did not violate a constituent’s First Amendment rights when he blocked the constituent from posting to his Facebook page. In that case, the constituent had posted a series of comments criticizing the city manager’s COVID-19 policies. The court explained that the city manager used his page to make a variety of posts both reflecting his personal life and updates about some of the administrative directives he issued as city manager. Moreover, he did not operate his page to fulfill any actual or apparent duty of his office, nor did he use his governmental authority to maintain it. Thus, the city manager was acting in his personal capacity – and there was no state action.
Until the issue is addressed there remains significant uncertainty as to whether public officials may block individuals from their private accounts when those accounts have been used to discuss official duties. While O’Connor-Ratcliff and Lindke remain pending, public officials are advised to proceed with caution when managing their private social media platforms.
We have attorneys with experience in a wide range of issues that arise under the First Amendment and under its analogue in the Massachusetts Declaration of Rights. We are happy to address any questions that our governmental clients may have.
This update is provided for informational purposes only and should not be considered legal advice.