IP Law Daily, TECHNOLOGY/INTERNET NEWS: Supreme Court agrees to hear two cases over public officials’ social media accounts, (Apr 26, 2023)
The Court will examine whether public officials violate free speech by blocking people from personal Facebook and Twitter accounts, after previously deflecting a 2021 Trump-related case.
The Supreme Court has agreed to take on two cases addressing the question of whether public officials violate the First Amendment when they block individuals from their personal social media accounts. The Court is being called on to decide whether the officials’ use of the accounts constitutes the requisite state action to support civil rights claims based on violations of the freedom of expression.
These cases join a growing body of disputes before the Court concerning the application of free-speech and other rights to social media platforms—both with respect to the rights of users and the rights of the platforms themselves. Notably, in February the Court heard arguments in two cases—Gonzalez v. Google, No. 21-1333, and Twitter, Inc. v. Taamneh, No. 21-1496—about the potential liability of social media service providers for attacks by terrorist groups that allegedly were assisted by the ability to post videos and other content to YouTube, Twitter, and other platforms. The Gonzalez case represents the Court’s first substantive look at the controversial service-provider immunity provisions of Section 230 of the Communications Decency Act. The newly granted cases are focused on the rights of users and account holders, but in a 2021 opinion discussed below, regarding First Amendment claims involving former President Trump’s Twitter account, Justice Clarence Thomas provided a hint that social media providers’ legal rights and obligations also may come into play.
O’Connor-Ratcliff v. Garnier. The first case, O’Connor-Ratcliff v. Garnier, No. 22-324, concerns the personal Facebook and Twitter accounts of two elected members of the Poway Unified School District Board of Trustees in California. The trustees used their accounts to communicate with the public about their jobs and the district. Parents of some of the children attending schools in the district allegedly spammed the trustees’ posts and tweets with repetitive comments and replies, prompting the trustees to block the parents from the accounts.
The parents brought an action in federal district court pursuant to 42 U.S.C. § 1983, alleging First Amendment violations. The district court ruled in favor of the parents, and the trustees appealed to the U.S. Court of Appeals in San Francisco. The Ninth Circuit affirmed the district court’s judgment, holding that the trustees had acted under color of state law by using their social media pages as public fora in carrying out their official duties. The court further held that the restrictions on the parents’ expression were not appropriately tailored to serve a significant governmental interest and therefore were invalid. The trustees petitioned for Supreme Court review; the petition was granted on April 24, 2023.
The question presented by the petition for review in O’Connor-Ratcliff is:
Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.
Lindke v. Freed. The second case, Lindke v. Freed, No. 22-611, involves the city manager for Port Huron, Michigan, and his deletion of comments a citizen had made on his personal Facebook page criticizing his handling of the COVID-19 pandemic and blocking of the individual from commenting altogether. In June 2022, the U.S. Court of Appeals in Cincinnati held that the city manager did not violate the individual’s First Amendment rights because posting about his job did not turn his Facebook page into official action. The appellate court affirmed a district court’s grant of summary judgment in favor of the city manager on the individual’s Section 1983 claims. In the Sixth Circuit’s view, because he did not operate his page to fulfill any actual or apparent duty of his office and did not use his governmental authority to maintain the page, he was acting in his personal capacity. The individual’s petition for a writ of certiorari was granted April 24, 2023.
The petition in Lindke poses the question, “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”
Trump’s Twitter account. The Court briefly addressed a similar issue in 2021 when it vacated a Second Circuit opinion holding that then-President Donald Trump violated the First Amendment when he blocked followers from his Twitter account. The Court granted the petition for a writ of certiorari, but it remanded the case with instructions to dismiss it as moot because Trump was no longer in office. Biden v. Knight First Amendment Institute at Columbia University, 141 S. Ct. 1220.
The former President used his @realDonaldTrump Twitter account as a primary vehicle for his official communications and made official statements on a wide variety of subjects, including those of national importance. The public was able to respond to the President’s tweets and other users on Twitter. Knight First Amendment Institute at Columbia University and other social media users were blocked from accessing and interacting with Trump’s Twitter account because they expressed views he disliked. The plaintiffs sued Trump, along with certain White House officials, contending that the blocking violated the First Amendment. The district court granted summary judgment to the plaintiffs and Trump and the White House officials appealed.
In July 2019, the Second Circuit determined that President Trump’s official Twitter account was a public forum and that the plaintiffs’ exclusion from that space amounted to unconstitutional viewpoint discrimination. In August 2020, then-Solicitor General Jeffrey Wall sought review from the High Court, arguing that Trump’s Twitter account was personal. After the election, the former Solicitor General filed a supplement brief, seeking to vacate the lower court judgment.
Justice Clarence Thomas, while agreeing that the Court correctly vacated the Second Circuit opinion due to the change in administration, wrote a concurring opinion in which he opined that applying old doctrines to new digital platforms was “rarely straightforward.” Specifically, in Justice Thomas’s view, it was “odd” to say that something was a government platform when a private company had unrestricted authority to “do away with it.” He noted that while Trump had limited control of the account to block a few users from accessing the comment threads, Twitter had permanently removed Trump’s account from its platform, barring all users from interacting with his messages. Under its terms of service, Justice Thomas wrote, Twitter can remove any person from the platform, including the President of the United States, at any time for any or no reason.
“Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors,” Justice Thomas wrote. “Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
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