This week, the Supreme Court granted review in two cases that will determine whether government officials can violate the First Amendment when they block users on social media. More specifically, the Court will consider whether—and to what extent—government officials’ private social media usage constitutes “state action” subject to constitutional scrutiny.
The first case, O’Connor-Ratcliff v. Garnier, involves two elected school board members who used their private Facebook and Twitter accounts “to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to Board meetings . . . and to communicate with parents about safety and security issues at the District’s schools.” In this way, the members’ use of their social media accounts was directly connected to, although not required by, their official positions.
Two parents in their school district, Christopher and Kimberly Garnier, criticized the school board on these members’ social media pages. Their critiques were relevant and unthreatening, though lengthy and repetitive. The members first “hid” or deleted the Garniers’ repetitive posts. Eventually, they blocked them.
The Garniers sued the board members, arguing the members acted as state actors rather than private social media users when they blocked their constituents. This, they argued, was censorship which violated their First Amendment freedom of speech.
The Ninth Circuit agreed with the parents, holding that “because the [board members] presented . . . their private social media pages as official organs for carrying out their Board duties . . . they unequivocally ‘cloaked’ their social media accounts ‘with the authority of the state.’” On this basis, the Court determined the members’ accounts were subject to First Amendment’s prohibition on government censorship: no blocking of the Garniers’ posts allowed.
The second case, Lindke v. Freed, involves the city manager of Port Huron, Michigan, James Freed, who blocked accounts and deleted comments critical of his stance on Covid-19 on his once-personal, now-public Facebook page. Importantly, Freed mixed official postings with personal ones; he frequently shared content on his administrative directives, public health updates on the Covid-19 pandemic and posts celebrating his family. In this way, Freed’s account was not used entirely for communicating official business.
Lindke was a constituent who frequently commented on Freed’s posts to criticize his stances on Covid-19. Freed removed Lindke’s posts and, like the school board officials in O’Connor-Ratcliff, eventually blocked his critic. Lindke sued, arguing Freed’s removal of his content violated his First Amendment rights.
Departing from the Ninth Circuit’s holding, the Sixth Circuit found Freed did not engage in state action when he blocked Lindke. (And thus, he did not violate Lindke’s First Amendment rights.) The court held that a government official’s social media activity is only state action if it is “fairly attributable” to the state itself. Because blocking Lindke could not fairly be attributed to Port Huron, Michigan, the court reasoned that the blocking was private, rather than public action. This means it is not subject to constitutional scrutiny.
Interestingly, the Sixth Circuit panel did enumerate specific, similar situations where a government official blocking a constituent would satisfy its state action test, including:
- when the law requires the operation of the official’s social media account;
- when the official’s social media account is operated using state resources;
- when the official’s social media account actually belongs to the government’s office, not the officeholder; and
- when the official’s social media account is managed by other government employees.
Importantly, the Sixth and Ninth Circuits did not address the overlay between Facebook and Twitter’s own content policies and the officials’ blocking actions. If the officials asked the social media services to take punitive action against the constituents instead of blocking them directly, this case would be more akin to the First Amendment “jawboning” social media suits currently making their way to the Fifth and Sixth Circuits.
We’ve been waiting for the Supreme Court to resolve the question in O’Connor-Radcliff and Lindke for several years; nearly identical questions have been raised in lower federal courts at least seven times since 2019. The Court previously came close to reviewing it in Trump v. Knight First Amendment Institute (also known as Biden v. Knight), a case which asked whether President Trump violated the First Amendment when he blocked users on Twitter. By the time the Court heard Trump, however, Trump was no longer president, and Twitter had already banned him from the service. This made the lawsuit moot, and it was subsequently dismissed. When the Sixth Circuit departed from the Ninth Circuit’s judgment in O’Connor-Radcliff, it created a circuit split, making this question ripe for Supreme Court review again.
O’Connor-Radcliff and Lindke are important cases that will affect the future of free speech on the internet, especially when considered in conjunction with the Court’s upcoming rulings in Gonzalez, Taamneh, 303 Creative, and (likely) the NetChoice Cases.
Unlike the NetChoice Cases, neither O’Connor-Ratcliff nor Lindke asks whether private social media services can ban or otherwise moderate users. Yet like NetChoice—and Gonzalez, Taamneh, 303 Creative—O’Connor-Ratcliff and Lindke will determine what actions the First Amendment allows the government to take against online speech.