Supreme Court to Decide Whether Officials Can Block Critics on Social Media

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WASHINGTON — The Supreme Court agreed on Monday to decide whether elected officials violate the First Amendment when they block people from their social media accounts.

The question has divided the lower courts and had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.

“We conclude that the evidence of the official nature of the account is overwhelming,” Judge Barrington D. Parker Jr. wrote for a unanimous three-judge panel of the court, the U.S. Court of Appeals for the Second Circuit. “We also conclude that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”

Had the account been private, Judge Parker wrote, Mr. Trump could have blocked whomever he wanted. But since he used the account in his official role as a government official, he was subject to the First Amendment.

After Mr. Trump lost the 2020 election, the Supreme Court vacated the Second Circuit’s ruling as moot.

On Monday, the justices granted review in a pair of cases involving local officials, focusing on whether their use of private social media accounts to discuss public issues amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.

One of the cases concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’Connor-Ratcliff and T.J. Zane. They used the accounts, created during their campaigns, to communicate with their constituents about activities of the school board, invite them to public meetings, ask for comments on the board’s activities and discuss safety issues in the schools.

Two parents, Christopher and Kimberly Garnier, frequently posted lengthy and repetitive critical comments, and the officials eventually blocked them. The parents sued, and lower courts ruled in their favor.

“We have little doubt that social media will continue to play an essential role in hosting public debate and facilitating the free expression that lies at the heart of the First Amendment,” Judge Marsha S. Berzon wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. “When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them.”

The school board officials’ petition seeking Supreme Court review in the case, O’Connor-Ratcliff v. Garnier, No. 22-324, said their accounts were personal and were created and maintained “without any direction, funding, support or other involvement by the district.”

The petition added, “A public official does not engage in state action when blocking users from a social media account where, as here, the account is not operated pursuant to any governmental authority or duty.”

The second case, Lindke v. Freed, No. 22-611, concerned a Facebook account maintained by James R. Freed, the city manager of Port Huron, Mich. He used it to comment on a variety of subjects, some personal and some official. Among the latter were descriptions of the city’s responses to the coronavirus pandemic.

The posts prompted critical responses from a resident, Kevin Lindke, whom Mr. Freed eventually blocked. Mr. Lindke sued and lost. Judge Amul R. Thapar, writing for a unanimous three-judge panel of U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, said Mr. Freed’s Facebook account was personal, meaning that the First Amendment had no role to play.

“Freed did not operate his page to fulfill any actual or apparent duty of his office,” Judge Thapar wrote.” And he did not use his governmental authority to maintain it. Thus, he was acting in his personal capacity — and there was no state action.”

Katie Fallow, a lawyer with the Knight First Amendment Institute at Columbia University, which had sued Mr. Trump, said in a statement that the question the justices agreed to decide had only become more pressing.

“With more and more public officials using social media to communicate with their constituents about official business,” she said, “public officials’ social media accounts are playing the role that have historically been played by city council meetings, school board meetings and other offline public forums.”

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