Supreme Court grapples with First Amendment rights of public officials, constituents on social media

The Supreme Court on Tuesday grappled with the free speech rights of public officials versus the rights of their constituents on social media and whether it’s lawful for them to be blocked from viewing posts.

The justices — from both wings of the court — struggled with where to draw a balance between the competing First Amendment rights.

“This is a case where there are First Amendment interests on both sides,” said Justice Elena Kagan, an Obama appointee. “That’s what makes these cases hard.”

The two legal battles came to the court with conflicting rulings from lower courts.

Kevin Lindke sued James Freed, the city manager of Port Huron, Michigan, after he was blocked on Facebook for repeatedly commenting on posts about the COVID-19 pandemic.

Mr. Lindke, as a resident of Port Huron, argued that Mr. Freed used his Facebook page for personal and professional posts, including sharing important data on COVID-19. Mr. Lindke claimed his First Amendment rights were violated by being blocked.

A district court dismissed his case, finding that Mr. Freed’s use of the Facebook page did not constitute state action, so the First Amendment did not apply. The 6th U.S. Circuit Court of Appeals affirmed that lower court decision, prompting Mr. Lindke to take his case to the high court.

The other case comes out of the 9th U.S. Circuit Court of Appeals regarding members of a school board in San Diego blocking parents on Facebook and Twitter.

Board members told the high court that the accounts were maintained without government funding, and the parents were blocked after spamming the accounts. The parents had commented about racist incidents and financial mismanagement, according to court records.

Splitting from the 6th Circuit, the 9th U.S. Circuit Court ruled against the board members, reasoning the social media accounts showed posts and communications related to professional duties.

The federal government filed briefs in both cases, siding with the public officials.

Sopan Joshi, an attorney from the Justice Department, told the justices during the hearing over the school board members that they should look at the duty and authority being exercised, as well as the type of property being used — like was it a personal or private account.

“If the defendant denies access to government property, probably state action. If the defendant denies access to her own personal property, she’s probably acting in her capacity as a private property owner, not as an agent of the state,” Mr. Joshi said.

This is the first time the issue of public officials blocking people on social media has hit the justices.

In 2019, a federal appeals court ruled that then-President Trump’s use of his personal Twitter account for posts related to his position as president and communicating with the public meant he could not block critics from seeing the posts.

Mr. Trump used the account before becoming president and continued to use it to communicate during his official duties. The appeals court said the blocking was a violation of the viewers’ First Amendment rights.

Mr. Trump left office before the justices could consider his appeal.

Justice Kagan pointed to Mr. Trump’s use of his Twitter account to announce government policies during arguments on Tuesday in the cases related to the city manager and school board members.

“It was an important part of how he welded his authority, and to cut a citizen off from that is to cut a citizen off from how government works,” Justice Kagan said.

Hashim M. Mooppan, who represented the school board members, said what should matter is who controls the account. He differentiated Mr. Trump’s case, noting a government aide helped the president create his posts.

“When a public official is using their personal property … all of that speech is personal,” he told the justices. “Duty or authority is the right test.”

But Pamela S. Karlan, who represented the parents, said the facts in the case reveal the members were using the pages for official duties — and directing people to official office addresses.

“When they create an ongoing site like the site here, they maintain a forum, if you will, for which people can comment and people can talk to each other,” she said. “The Facebook page says if you want to talk to me, contact me at your official office.”

Justice Samuel A. Alito Jr., a George W. Bush appointee, wondered how to define an official’s duty and the scope of it for the purposes of communicating on a personal or public forum. Meanwhile, Justice Amy Coney Barrett, a Trump appointee, wondered if the determination should be made post by post.

“Are we looking at this as whose account is it or are we looking at specific actions?” Justice Barrett questioned.

“We have to be concerned about the test,” said Justice Alito, a Bush appointee.

Allon Kedem, who represented Mr. Lindke, said the court should look to see if a social media page was maintained for informational purposes related to constituent services.

“It’s the way you’re using the page,” Mr. Kedem said.

Victoria R. Ferres, who argued on behalf of the city manager, stressed public officials have free speech rights too.

“A public employee should be able to speak about their job so long as they aren’t exercising their actual job duties on the page,“ she said. “Just speaking and reposting about your job should be fine to do.”

The two cases are Lindke v. Freed and Michelle O’Connor-Ratcliff, et al. v. Christopher Garnier, et ux. A decision is expected by the end of June from the high court.