Supreme Court sets rules to prevent citizens from accessing public officials' accounts

The Supreme Court, in a a pair of unanimous decisions Friday added some clarity to a thorny constitutional puzzle: how to decide when elected officials violate the First Amendment by blocking people's access to their social media accounts.

Justice Amy Coney Barrett, writing for the court in the main case, said two things were required before officials could be sued by people they blocked. Officials must have been authorized to speak for the government on the issues they address on their sites, she wrote, and they must have used that authority in the positions in question.

The court did not apply the new standard to cases before it involving a Port Huron, Mich., city manager and two California school board members. Instead, he sent the cases back to lower courts to handle that task.

These cases were the first in a long series in which the Supreme Court has considered how the First Amendment applies to social media. The court heard arguments last month on whether states can ban big tech platforms to delete messages based on the opinions they express, and it will examine on Monday whether Biden administration officials can contact social media platforms to combat what they see as misinformation.

Friday's cases were less important than the others, and the wavering nature of both decisions demonstrated the difficulty of applying old doctrines to new technologies.

In both cases, the question was whether the officials' use of the accounts amounted to state action, which is governed by the First Amendment, or private activity, which is not.

The case involving the city manager, Lindke v. Freed, No. 22-611, concerned James R. Freed's public Facebook page, which he used to comment on various topics, some personal and some official.

Judge Barrett described the mixed messages on Mr. Freed's page. “For his profile picture, Freed chose a photo of himself in a suit with a town pin,” she wrote. “In the “About” section, Freed added his title, a link to the city's website and the city's general email address. He described himself as “Lucy's Dad, Jessie's Husband and City Manager, Chief Administrative Officer to the Citizens of Port Huron, Michigan.” »

Mr. Freed, the judge wrote, “posted prolifically (and primarily) about his personal life.” But he also published information about his work.

“He shared news about the city’s efforts to streamline leaf collection and stabilize the water intake from a local river,” Judge Barrett wrote. “He pointed to communications from other city officials, such as a press release from the fire chief and an annual financial report from the finance department. On occasion, Freed solicited public comment – ​​for example, he once posted a link to a city housing survey and encouraged his audience to complete it.

During the coronavirus pandemic, Mr. Freed has written about the city's response. Those posts sparked critical comments from one resident, Kevin Lindke, whom Mr. Freed eventually blocked.

Mr. Lindke sued and lost. Justice Amul R. Thaparwriting for a unanimous jury of three judges of the United States Court of Appeals for the Sixth Circuit in Cincinnati, said Mr. Freed's Facebook account was personal, meaning the First Amendment had no role to play.

“Freed did not operate his page to fulfill any real or apparent obligation of his office,” Judge Thapar wrote. “And he didn’t use his governmental authority to maintain it.” So, he was acting in his personal capacity – and there was no state action.

Judge Barrett wrote that “the issue is difficult, particularly in a case involving a state or local official who interacts regularly with the public.”

“The distinction between private conduct and state action,” she added, “depends on substance, not labels: private parties can act with state authority, and state officials have privacy and their own constitutional rights. Categorizing behaviors may therefore require careful consideration.

The Supreme Court's handling of the second case, in an unsigned three-page opinion, was even more enigmatic, sending the case back to the lower courts for reconsideration in light of the one involving Mr. Freed.

This case, O'Connor-Ratcliff v. Garnier, No. 22-324, concerned the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O'Connor-Ratcliff and TJ Zane. They used accounts created during their campaigns to communicate with their constituents about school board activities, invite them to public meetings, request feedback on school board activities, and discuss school safety issues.

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

“We are confident that social media will continue to play a vital role in organizing public debate and facilitating the freedom of expression that is at the heart of the First Amendment. » Judge Marsha S. Berzon written for a unanimous jury of three judges of the United States Court of Appeals for the Ninth Circuit, in San Francisco. “When state actors enter this virtual world and invoke their status as government to create a forum for such expression, the First Amendment enters with them. »

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