Supreme Court lays out new test for determining when public officials can be sued for blocking users on social media

Washington — The Supreme Court on Friday clarified when a public official who blocks a constituent on social media may be sued for doing so. It sent a pair of disputes over whether local officials crossed a constitutional line when they blocked users for Facebook comments back to lower courts for further proceedings.

In a unanimous opinion written by Justice Amy Coney Barrett in the first case, which involves a city manager from Port Huron, Michigan, the court laid out a two-pronged test for determining when a public official's speech on social media is attributable to the government and can therefore lead to litigation.

Under the new standard, an official is deemed a state actor online only if that official had "actual authority to speak" on the government's behalf, and "purported to exercise" that authority when speaking on social media. Social media users may then sue public officials for blocking them if those conditions are met, subjecting the government employees to First Amendment scrutiny.

The court said the standard that it laid out in its opinion differs from those applied by lower courts in the two cases involving public officials who blocked constituents on social media, and it sent the disputes back for additional proceedings consistent with its decision. 

The justices heard arguments in both cases, known as Lindke v. Freed and O'Connor-Ratcliff v. Garnier, in October, during which they tackled questions of how elected officials interact with their constituents in the digital age, and when those interactions may infringe on free speech rights. The legal battles raised an issue that arose during former President Donald Trump's presidency, when he was sued by some Twitter users who were blocked from interacting with his account. A federal appeals court said Trump's move was unconstitutional, but the Supreme Court wiped away the decision and ordered the case dismissed after he left office.

A separate opinion in the second case, O'Connor-Ratcliff v. Garnier, was unsigned and there were no noted dissents.

"We're gratified that the court recognized that public officials must comply with the First Amendment when they use their personal social media accounts to carry out their official duties, as former President Trump did with his Twitter account," said Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University, which sued Trump. "The Court was also right to hold that public officials can't immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business."

The Supreme Court's opinion didn't mention Trump's use of social media, but Barrett did cite the case against him in a footnote that said a blocked user on some platforms may not be able to see any posts from the public official who blocked them.

The cases before the Supreme Court

The first case, involving Port Huron city manager James Freed, stemmed from comments resident Kevin Lindke posted to Freed's Facebook page that criticized the city's handling of the COVID-19 pandemic. Freed had a private Facebook profile that he converted to a public page after he was named city manager in 2014. The page identified him as a "public figure," and listed a Port Huron website and email address, as well as City Hall for the physical address associated with the page. 

Freed wore a city manager's pin in the profile photo, and he used the page to share information about city programs, his work as city manager and, in early 2020, updates about the pandemic. He also shared personal updates.

While Freed and Lindke engaged in some back-and-forth on the Facebook page about the city's COVID response, Freed deleted the constituent's comments and blocked each of the three Facebook profiles that Lindke was using to post responses.

Lindke then sued, alleging his First Amendment rights were violated when Freed deleted his comments and blocked his accounts.

A federal district court ruled in favor of Freed, finding that his Facebook activity was not state action and therefore shielded from First Amendment scrutiny. The U.S. Court of Appeals for the 6th Circuit affirmed the lower court's decision and laid out a "duty-or-authority test," under which social media activity would be subject to constitutional scrutiny only if it is conducted in furtherance of governmental "duties" or where the activity depends on "state authority."

Freed, the court said, was acting in his personal capacity and had not engaged in state action. No law required him to operate a Facebook page as part of his duties, and he didn't rely on government resources, such as staff, to manage it, the 6th Circuit found. The profile also didn't belong to the city manager's office, the appeals court concluded.

The second case involved Michelle O'Connor-Ratcliff, the current president of the Poway Unified School District Board of Education, and T.J. Zane, a former board member. Each made public Facebook pages while running for positions on the school board in 2014. O'Connor-Ratcliff also had a public Twitter page.

Christopher and Kimberly Garnier, residents of San Diego County whose three children were enrolled in the school district, interacted with the board members' social media accounts frequently, often with "repetitious and non-responsive comments and replies" to their Facebook posts and tweets, according to court papers. In one instance, Christopher Garnier made the same comment on 42 different posts by O'Connor-Ratcliff, and issued the same reply to 226 of her tweets.

In response to the comments, O'Connor-Ratcliff and Zane blocked the Garniers from their social media accounts, which prompted the couple to sue. The Garniers argued the board members violated their First Amendment rights by blocking them on social media, which they claimed were public spaces.

A federal district court sided with the Garniers, concluding that O'Connor-Ratcliff and Zane blocking them amounted to state action. The board members, the court found, "swathed [their social media pages] in the trappings of [their] office" by listing their positions as board members, identifying themselves as government officials and listing a school district email address on the page, in O'Connor-Ratcliff's case.

The U.S. Court of Appeals for the 9th Circuit upheld the lower court's decision and concluded the Garniers' First Amendment rights had been violated. O'Connor-Ratcliff and Zane "acted under color of state law by using their social media pages as public fora in carrying out their official duties" because "they clothed their pages in the authority of their offices and used their pages to communicate about their official duties."

The Supreme Court's ruling

Writing for the unanimous court, Barrett said that the distinction between private conduct and state action "turns on substance, not labels: Private parties can act with the authority of the state, and state officials have private lives and their own constitutional rights."

She emphasized that while a social media profile's appearance and function are relevant for one prong of the new test, whether a public official has actual power to speak for the government is crucial.

Lindke, the court's opinion said, "imagines that Freed can conjure the power of the state through his own efforts. Yet the presence of state authority must be real, not a mirage."

Barrett wrote that any alleged censorship by a public official must be connected to speech on a matter within that official's "bailiwick."

"To misuse power," she said, "one must possess it in the first place."

Potential sources of that power may come from written laws that authorize an official to speak on behalf of the state, Barrett wrote, and in some cases, "the post's content and function might make the plaintiff's argument a slam dunk."

Focusing on the second prong of the test — a public official "must also purport to use" state authority — the court said that if a public employee doesn't use his speech to further his official responsibilities, "he is speaking in his own voice."

Barrett's opinion stressed that the "nature of technology" matters to the analysis of whether an official is deemed a "state actor," particularly given the differences in how a user may interact with a social media profile when blocked versus when comments are deleted.

"If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts," she wrote. "A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability."