Published by The Lawfare Institute
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The Supreme Court agreed to hear two cases about whether government officials violate the First Amendment when they block citizens from private social media accounts that are also used to convey government information. The questions posed by the cases bring to a head a split between the circuits over when a public official’s social media activity equates to state action. The parties argue whether the Court should examine social media pages in their totality or focus solely on the government authority invoked by the pages.
In Lindke v. Freed, James Freed, city manager for Port Huron, Michigan, used his Facebook page to communicate about city public health measures during the coronavirus pandemic. When Kevin Lindke commented on Freed’s posts to criticize the city’s coronavirus measures, Freed deleted Lindke’s comments and eventually blocked Lindke from his page. The U.S. Court of Appeals for the Sixth Circuit found that Freed did not violate Lindke’s First Amendment rights, ruling that Freed was not performing a duty of his office and therefore was not engaging in state action when he blocked Lindke and deleted his posts.
In O’Connor-Ratcliff v. Garnier, two Southern California school board officials, Michelle O’Connor-Ratcliff and T.J. Zane, blocked parents Christopher and Kimberly Garnier from their Facebook and Twitter accounts, after the Garniers inundated the school board members’ posts with “repetitive comments and replies.” The U.S. Court of Appeals for the Ninth Circuit found that the school board officials violated the Garniers’ First Amendment rights.
The Supreme Court agreed to hear the two cases to resolve the circuit split. Both cases, as well as the potential implications of the Supreme Court’s ruling, are described in more detail below.
Lindke v. Freed
In his petition for certiorari, Lindke focuses on the circuit split, noting that while four circuits examine the totality of the circumstances to determine whether a public official is engaging in state action, the Sixth Circuit uses the duty-or-authority test. The duty-or-authority test examines whether the official was performing a “duty of [their] office” or invoking the “authority of [their] office,” which would be the case only if Freed’s actions were controlled by the government or entwined with its policies. Lindke states the Sixth Circuit expressly parted ways with other circuits that examine a broader range of factors, such as a “social media page’s purpose and appearance” where the page conveys the “impression that the page operated under the state’s imprimatur.”
While Freed used his Facebook page to share Bible verses and pictures of his family, he also posted administrative directives and press releases relating to his job. Freed’s page reflected his government title in the name, the page categorization was “public official,” the city government’s website was linked on his page, and a general administrative staff email was listed under the page contacts.
Despite the appearance of the page, the Sixth Circuit stated that Lindke’s argument’s “focus on the page’s appearance seems akin to considering whether an officer is on duty, wears his uniform, displays his badge, identifies himself as an officer, or attempts to arrest anyone.” The court further stated that in cases of police authority, “appearance is relevant to the question whether an officer could have acted as he did without the authority of his office.” The court held, in contrast, that “Freed gains no authority by presenting himself as city manager on Facebook.” The court argued Freed’s “posts do not carry the force of law simply because the page says it belongs to a person who’s a public official.” The court used this reasoning to part from the other circuits, holding that the appropriate focus is the actor’s official duties and use of government resources or state employees, which are the “anchors” of the Sixth Circuit’s precedents on state action. The court concluded its opinion by stating that this test provides a predictable application for public officials and is a bright line in an otherwise blurry context.
O’Connor-Ratcliff v. Garnier
Inversely, the government officials in O’Connor-Ratcliff v. Garnier take issue with the Ninth Circuit’s use of the appearance-and-purpose test, as opposed to the duty-or-authority test adopted by the Sixth Circuit in Lindke v. Freed.
When the Ninth Circuit found the government officials’ actions equated to state action, the court noted the officials had “clothed their pages in the authority of their offices and used their pages to communicate about their official duties.” In so finding, the court emphasized the board members identified themselves as government officials, listed their official titles in prominent places, and one had also included her official email address in the contact information section of her Facebook page. The court treated all of the above as indicia of apparent authority, while acknowledging that the school district had not authorized the pages. The Ninth Circuit further noted that the social media accounts were “overwhelmingly geared toward providing information to the public about the Board’s official activities” and “soliciting input from the public on policy issues relevant to Board decisions.” As a result, the court concluded, “both through appearance and content, [the officials] held their social media pages out to be channels of communication with the public about the work of the Board.”
The government officials argue that application of the appearance-and-purpose test, as opposed to the Sixth Circuit’s more narrow duty-or-authority test, undermines the individual liberty that the state action requirement exists to protect. Individual liberty, they argue, includes the freedom of individuals holding public office to communicate with the public about their jobs in the manner in which they see fit, using their personal social media accounts.
The Supreme Court’s ruling in these cases will impact how public officials communicate with their constituents; it will also indicate how this Court views social media more broadly. These cases will also be the first time the Court fully examines the social media activity of public officials since the U.S. Court of Appeals for the Second Circuit ruled that President Trump acted in a governmental capacity when blocking citizens on his personal Twitter account.
If the Supreme Court comes out in favor of the appearance-and-purpose test, government officials may stop posting information relating to their official duties on their personal social media accounts. Should an official’s social media account come to be, through appearance and content, a mode of communication with the public, that official runs the risk of violating any commenter’s First Amendment rights by blocking their access to the account. We are likely to see officials attempt to avoid that risk by replacing such posts on personal accounts with ones on official social media accounts. By contrast, should the Court follow the duty-or-authority test, members of the public may lose access to vital government information simply based on the government official choosing to relay information through unofficial channels. Either outcome will drive shifts in how government officials communicate with the public. We could see a shift back to traditional, non-social media communications, reducing the overall amount of communication at a time when many Americans engage in political discourse solely through social media.