First Amendment: Supreme Court Considers Gov’t Officials’ Social Media Behavior
Lower courts couldn’t agree on whether a government official can block citizens from a personal social media account that is used to share official information.
The U.S. Supreme Court heard oral arguments late last month in two cases concerning the First Amendment implications of government officials’ behavior on social media.
The parties asked the Court to determine whether consistent with the First Amendment, government officials can block users from commenting on or viewing the officials’ ostensibly personal social media accounts when the officials use those accounts to disseminate some official information.
The cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, concern officials’ Facebook and Twitter blocking practices.
“This is a case where there are First Amendment interests on both sides,” Justice Elena Kagan remarked during oral arguments.
Attorney and expert Gary Lawkowski of the Dhillon Law Group, which does not represent any of the parties in these cases, described the competing First Amendment interests to Legal Insurrection:
On one hand, you have the more traditional First Amendment rights of the public to express their grievances to their public officials. We typically think—correctly—that public officials can’t just silence critics they don’t like. On the other hand, there are the First Amendment rights of the public officials themselves. By and large, you don’t surrender your First Amendment rights when you become a public official—you can still choose who you want to associate with, particularly when you’re off the clock.
In O’Connor-Ratcliff, two school board officials blocked alleged spammers from commenting on or accessing their social media accounts they also used to communicate school board information. In Lindke, a city manager blocked a user for alleged disparaging remarks from commenting on Facebook posts from an account he used to communicate official information.
In both cases, the officials created their accounts before taking office and used their accounts, at least nominally, to post about personal matters.
During oral arguments for O’Connor-Ratcliff and Lindke, which lasted over three hours, the justice wrestled with balancing the competing First Amendment interests of government officials using personal social media accounts with the First Amendment interests of their constituents to access government information posted to those personal accounts.
The cases come on appeal from two appellate courts that came to divergent conclusions. The Ninth Circuit, from which O’Connor-Ratcliff originates, held that the school board officials violated the First Amendment by blocking users from commenting on or accessing their social media accounts. The Sixth Circuit, from which Lindke originated, found no First Amendment violation.
The Ninth and Sixth Circuits arrived at these divergent conclusions by relying on two different tests to determine whether the officials’ conduct was “state action,” thus subjecting that conduct to the First Amendment, or whether the officials acted in a private capacity immune from First Amendment considerations.
The Ninth Circuit applied an “appearance and purpose” test, which asks whether the official’s social media use had the appearance of serving a governmental purpose.
The Sixth Circuit applied a “duty and authority” test, which asks whether an official had a legal duty to use his social media account to disseminate government information or whether the official acted pursuant to his legal authority when using his social media account.
Lawkowski praised the Sixth Circuit’s test for its clarity and ease of application but cautioned the test could have unintended consequences:
[The Sixth Circuit’s test] provides a fair bit of clarity for the government official, but excludes a lot of activity that most people on the street would think of as “government activity.” For example, if I became mayor and started a twitter account, @MayorGary, and use it exclusively to post about what I’m doing as mayor, as long as I’m not roping in my staff, the Sixth Circuit test would suggest that’s not state activity.
In both cases, Justice Ketanji Brown Jackson asked the attorneys whether a posted statement disclaiming official use would resolve the First Amendment issues.
Attorney Allon Kedem, who spoke on behalf of the blocked citizen in Lindke, told Jackson a disclaimer would likely be insufficient “in part because of the way that [the city manager] was using [his account] to make certain announcements and issue directives, information that you wouldn’t necessarily be able to get anywhere else.”
Attorney Hashim Mooppan, who spoke for the officials in O’Connor-Ratcliff, questioned the wisdom of a disclaimer rule, arguing officials unaware of such a rule might “inadvertently los[e] control over their property because they didn’t put up a disclaimer.”
Lawkowski told Legal Insurrection disclaimers came with promise and pitfalls:
Disclaimers are a great solution and get you a lot of the way there. The concern is that public officials will just add a disclaimer to an account and then proceed just as they did before, including posting official announcements that may not be available anywhere else and engaging with the public on matters within their official duties. If you favor more of a bright line, that may be a consequence you’re willing to live with, but is a potential consequence of relying on disclaimers alone.
O’Connor-Ratcliff oral argument transcript:
Lindke oral argument transcript:
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Comments
Bring back shadow-banning. It is the weasel’s way out.
It seems a simple solution. Official announcements from official sources. Apply typical government speech rules to those.
Let personal accounts be personal. Sharing an official announcement on a personal account shouldn’t make it a government account.
Your two paragraphs are in conflict. IMO the easiest and clearest way to approach this issue is by looking at it the same way we would financial accounts. Don’t co mingle the funds and co mingle the messages. If you use an account to communicate official business that account has become non private.
By keeping that easy distinction with a very clear test it prevents deliberate shenanigans by officials who want to skirt the rules and claim ‘oh, this account is private not official’. This becomes important when Citizen FOIA requests are made, Congressional oversight of collision with big tech and/or other instances where the official seeks to hide their improper/illegal acts by deliberately using a ‘private’ account to do official things.
I agree that a Chinese wall between an official account and a private one is the cleanest solution. Its easy enough for any and officials or bureaucrats be required to sign a statement acknowledging this.
How one is penalized for breaking this agreement is another discussion.
I believe most citizens understand that when an official uses an ostensibly private account to transact public business, it is possible and perhaps even likely to do so in order to hide activity that doesn’t bear scrutiny.
Funny thing is that neither of these cases involve a claim that the blocking on social media was done “in order to hide activity that doesn’t bear scrutiny.”
Both case deal with criticism of government officials.
The idea of “hiding activities” is not the issue in these two cases. It is another whole can of beans. It too needs addressing, but these cases won’t do it.
CommoChief, exactly right. Put the onus on the government officials who have the incentive to skirt the rules.
The thing is there’s already a rule in place concerning emails (at least at the federal level):
You will ONLY use your official email account for official correspondence.
And, if you do use your personal email for official correspondence, that entire email account becomes part of your official record.
It’s what everyone was up in arms about with Hillary. She was breaking regulations and law with her private server and using personal accounts.
If you need social media in your gov’t job (and not just for re-election) then you get a gov’t social media account that belongs to your office, and you use THAT. And you do NOT put out official information on your personal accounts. Period.
Yep. This exactly correct at the Federal level. In fact the DoD goes further, you use a non govt issued ‘device’; personal laptop, personal cellphone to conduct gov’t duties/actions and the hard drive now belongs to the gov’t.
Unfortunately we still see abuses. Worse at the State and local level where policies are not so clear and may not be so rigorously enforced due to cronyism. This is why a very clear demarcation is absolutely required to preclude all the BS sophistry that son use to cloud the true issue.
Bingo. I’m pretty sure the same rule applies to conducting government business on your personal cell phone.
There are all sorts of precedents here, and they all tend the same way. What is so hard about this one?
This seems really stupid. We are arguing over whether an individual can block a follower while ignoring the wholesale censorship of entire populations at direct government request on social media.
Unless, of course, the personal account belongs to anyone named Trump. At least that’s what the courts have said so far. Trump uses Twitter to conduct government business, he cannot exclude some Americans from reading his posts — and engaging in conversations in the replies to them — because he does not like their views, a three-judge panel on the United States Court of Appeals for the Second Circuit, in New York, ruled unanimously.
But then, blocking any POTUS named Trump from using social media at all is also acceptable. Use of social media is only for the officially approved of.
I don’t use social media, so if someone could help me out here. When you block someone on Twitter or Facebook do you block their ability to see your posts, or just responding to your posts?
On Facebook if you block someone they can’t see your posts
You are using social media right now. What do you think a comment board is?
You know what I mean.
“You are using social media right now. What do you think a comment board is?”
Weirdly, it’s not ‘social media’.
It’s a format that social media adapted for it’s own use.
Comment boards were created to gauge immediate feedback to articles. Very quickly the tendency to respond to other comments in addition to the articles was noted.
Soon after came the idea of generic web pages that people could fill with whatever they wanted people to react to.
And social media was born..
On Twitter, blocking someone negates their ability to see your tweets as well.
If government officials use their personal email accounts to transmit information on public issues, does that automatically deny the public a FOIA request of official government communications? Of course not.
Same thing with social media. What government can do is make it a crime to obstruct anyone’s SM communications, and spamming is definitely an intent to obstruct. But nasty comments? Government officials should not be able to get enough of them.
Indeed, it’s not theoretical that govt officials use personal phone numbers and email accounts to hide things that would look bad in daylight. Hillary did it, Biden certainly did too. The FOIA is meaningless/worthless if officials can conduct official business in private, besides the considerable possible security issues of using personal communication means for govt business,
Is it really such a hardship if (say) a mayor has to either post all job related info on a job account or is limited to linking from his personal blog (etc) if he wants to commingle personal with official?
It should be like FOIA info, you can’t cover your wolf in sheepskin and claim it’s not a wolf and wolf rules don’t apply.
There is a representative in our area that blocks people on his social media account if they disagree with him. (He claims the account is personnel but has no “official” account.)
He also uses the account for government work (announcing events, bills, investigations, etc.) and the posts are made by his staff.
The representative is Jewish (which is not an issue.) However, when he bans a person for disagreeing, he makes the claim they are antisemitic, If a person is Jewish and they disagree with him, he bans them, then makes a post that they are a term which means “Nazi collaborator.”
The problem is that he uses government resources (staff,) to make government notices on his account, and then slanders and bans those who disagree with him. In short, he is using government resources, government staff, and government funds to make these posts and then claim they are not subject to First Amendment claims or even “Sunshine Law / Chapter 119” (FOIA) requests,
There is so much there that it is impossible to decipher.
It is notable that in the cases under review, the populations of the cities are rather small (approx 50K and 30K,) so when “FOIA” requests are made, they are reviewed by someone who works for the City and or is subject to contract with the City. They have more loyalty to the City government /
Board than the citizens of the community.
The people then routinely remove or don’t disclose what could be damning information, correspondence, calls, etc because they have been told not to.
I can give you horror stories on the way that government employees and elected officials do not comply with the letter or the spirit of the “disclosure” laws.
And this is part of the problem. But only part.
I have a problem with people who know of government corruption but will not name names. They enable that corruption.
The government does not have first amendment rights.
Government officials do not have first amendment rights.
The government, and government officials, have first amendment REGULATION. They are RESTRAINED by the first amendment, not enabled by it.
Exactly right
I made a state FOIA request over six years ago. The state FOIA act requires agencies to respond to such requests in “the promptest possible manner.” The agency is answering in installments. At a rate that will take it over 300 years to finish producing responsive documentation, thereby responding to the request.
If a government agency or official can figure out a way to avoid complying with the purpose and spirit of public disclosure laws, he, she, or it will do so.
I made a “PIA” request in the State of Maryland (Public Information Act) years ago. The Act requires the responding agency to produce the document within 30 days or state a reason for denial or reason for the delay.
When 45 days had passed, I wrote again and the responding agency said they did not have to reply. I asked for the statute. They said there was none, they just weren’t complying.
I wrote the Ombudsman who handles PIA problems. She wrote and told me that 30 days was not enough time for the request. I cited the statute to her and pointed out that the agency was not in compliance with the notice requirements.
The Ombudsman said the statutory language was only “advisory” and her job was to facilitate disputes and not to hold agencies accountable. I once again cited the statute that said her job was to get the requested information. She said she wasn’t going to do that.
She later left the position and was appointed to a higher government position.
Lest anyone think the request was overly broad, the PIA request was for the state required slough test and composition for concrete that was poured to make sidewalks on one street,
If the owner of the property poured the concrete, they had to produce the documents ON DEMAND. The government, on the other hand, didn’t have to produce them at all (even though the law said they did.)
The government was not granted First Amendment rights. Individuals are and the entire focus of the First is to limit government, not expand it. That having been said, of course the government can communicate, but it must do so with attribution so as not to confuse the individual messenger with the government. Secondly and foremost, the government may not censor because that is the antithesis of the First, and has always been such.
Every action the government takes must be public knowledge and readily discernible.
As to these cases…
The biggest problem is an absolutist approach to the First Amendment that claims, somehow, someone has to take abuse from someone just because they are a gov’t employee.
Here’s the case for blocking someone even on an official account: someone who constantly replies to every Tweet with profanity and disjointed craziness. If the citizen did that in person, you could have them banned from city hall or get a restraining order. But, because it’s social media, some will argue “free speech” and the need for receiving the information pushed out on that account (despite the harassment).
And, as long as you separate the personal and official social media accounts, that should be easy to handle with some wisdom (ha! I slay myself) on handling harassment and obscenity and such.
So, require personal accounts not be used for official functions. Ever.
And generate some bit of due process for blocking someone who is actually harassing or being obscene on the official account.
We would agree with you if you want to designate the official account as a “limited public forum.” People can be banned for disrupting essential government interests in a “limited public forum.”
However, that ban cannot be preemptive. You can’t blanket ban someone – even at a limited public forum – because of their behavior in the past.
On a personal account, all bets are off. You can and should be able to ban anyone. But if the government employee is using a personal account to broadcast government issues, a total ban is inappropriate.
As for limiting people to what they are saying, government employees still have First Amendment rights.
Assume for a second that a government entity is sponsoring a “Fourth of July Parade and Concert.” At a City Council meeting, it is announced and people are encouraged to spread the word. Are you saying that the government employee can’t advertise the parade and concert on THEIR private account, but a non-government employee can?
Even with something like electioneering, governments can (and do) ban electioneering on the government account, or even on government emails. But they cannot ban electioneering on private accounts.
These are not simple of cases as people think. The remedy is hard to determine.
Are you saying that the government employee can’t advertise the parade and concert on THEIR private account
No, because that’s public information.
But they shouldn’t be using their personal account to notify residents that trash pickup this week is on Wednesday. They shouldn’t be announcing land auctions (officially) or emergencies (officially) or any other gov’t action as coming from their official position as county snog-certification expert.
I don’t think these are nearly as hard as you’re making out.
Let’s go back to what you said:
So, require personal accounts not be used for official functions.
Now you are saying that “public information” can never be “official functions.”
But you dive deeper and say that the public information of “trash pickup” cannot be put on a personal account. And yes, even land auctions and emergencies are “public information.”
You are contradicting yourself.
No, what I’m saying is you can’t use the personal account to conduct the gov’t’s business.
If you want to publicize something on your personal account, fine, have at it. And you can ban anyone you want.
But, there should be an official account, and there you CANNOT ban anyone except for things like obscenity or harassment.
YOU are the one who keeps trying to make it harder by confusing official pronouncements and work with a citizen saying something. That sort of silliness is exactly WHY those accounts need to be separate – so you know what’s official and what’s personal.
There’s a difference (and ought to be) between “The city of Teenytown has declared an emergency due to the tornado. Do not travel through downtown until further notice, except on official business.” coming from @TeenytownEmergOfc and coming from @ILiveInTeeny52 – even if @ILiveInTeeny52 works at the Emergency Management Office.
Once again, you contradict yourself by saying that people can post information – even government supplied information – on their social media accounts but that private accounts from public officials should be barred from posting government supplied information.
In your example of the tornado in Teenytown, you try to make a distinction without a difference. Many representatives will post or “share” announcements from the town on their own pages. The question then becomes “does that “sharing” make the account subject to First Amendment requirements that a person be allowed to address the government?
Here’s a better example and a tougher one…..
TeeneyTown posts an agenda for the City Council meeting which includes a vote on a zoning change to allow WidgetCo to build on a factory what is now zoned as farmland.
Representative Smith posts the agenda and the specific item and then posts how they are going to vote and why on their “personal” account. Because that is a case of a Representative talking about governmental business, should they be allowed to ban someone who disagrees with their vote? Or posts a series of reasons as to why the representative is wrong to vote for the zoning change? Can the representative ban people from posting they are against his vote on the very page and account where he announced his official position as a government official?
You seem to claim that the representative should not be even allowed to post his vote on private account (a clear first amendment violation) but allow the posting of the agenda because it is “public record” even though the agenda is government business.
You say “ban government pronouncements on private pages” and then say it is allowed.
You continually contradict yourself.
Once again, you contradict yourself by saying that people can post information – even government supplied information – on their social media accounts but that private accounts from public officials should be barred from posting government supplied information.
NO, that is NOT what I said.
You seem to claim that the representative should not be even allowed to post his vote on private account
He should have an official account where he posts that. If he uses the same account where he posts that he’s going to the Poconos with his family, then he has just made his personal account an official one. No, he should NOT do that, because it now places everything in his personal life into his official record.
I’m done with your bad faith arguing.
Your logic and thinking is muddled. To be clear, government employees do not have ‘rights’. Only private individuals have rights. Clearly, if the person is acting in their official government capacity or is at the time ‘on the job’, then they do not have rights. They have duties, obligations, and responsibilities. Their conduct, including speech, is limited.
This should not be so difficult to understand, because the same applies to employees of private companies. They do not have the right to say or do anything they please while on the job. Their acts off of the clock can also result in discipline, including termination. We should stop trying to give government agents ‘rights’ that no one has.
To be clear, government employees do not have ‘rights’.
Citation needed, please.
People do not give up their rights when they walk through the doors of a government building. They still maintain the right of freedom of religion. (ie government supervisors cannot deny they wearing of a cross or a hijab on the job.) They have the right to be treated without discrimination under the 14th Amendment. Workers are not subject to “unreasonable” searches under the 4th Amendment.
Your position that government workers have no rights is contrary to the Constitution, and established law.
And, once again, you’re purposefully conflating their existence as a private citizen with their existence as an agent of the state.
Those workers do not have rights in their official capacity except as concerns other gov’t action against them (for example, in their capacity as an employee where they can’t be discriminated against in being fired). When they are acting as an agent, they don’t get to, say, tell the citizen across the desk from them that they won’t issue a marriage license because they don’t believe in miscegenation. They can state that all they want off-duty, but if they say it in their capacity as an agent of the state they are in violation of the law and do NOT have any rights associated with it.
That you can’t see the difference between those two things is where your problem lies.
So you agree that government employees do not lose all of their rights when they walk through the door as you gave the example of being discriminated against.
You were the one who said government workers have no rights and now are saying they do.
And for the record, courts across the land have dealt with the issue of a person wearing something like a cross and a supervisor telling them they have to take the cross off. Courts have ruled that the cross can stay because it is part of their freedom of religion. (Remember, you claimed that the government workers have NO rights.)
We can discuss as to whether rights can be restricted to some extent in government employ, but that is not the same as “government employees have no rights” as you claim and repeated.
I was under the impression the Trump precedent established that elected officials can’t block folk from a private account from which they conduct official business. Unless there’s a total wall of separation the public-private boundary is blurred and thus treated as public.
But that wasn’t SCOTUS making the ruling and I think the clock ran out before SCOTUS had to get involved.
During the prior Trump administration, did not the courts rule that the government cannot keep the media out of the daily White House press briefing? Are not members of the press allowed to question the actions of the administration during those briefings? Thus a government official has no right to block people who disagree with the official.
A leftist court did establish that. But it was not argued high enough to slap down said court, before the issue became moot.
(And the actual decision was that they couldn’t remove someone’s press credentials because they were a flaming jerk, but they misapplied the First Amendment to reach that result. No one was stopping anyone from the press from trying to ask questions. It was all about the privilege of carrying that White House Press pass.)
Trump administration gave up almost immediately on that case. The Supreme Court is in no way bound by that precedent (never reached the supreme court).
You can’t ban a reporter from the press corps for physical assault on a woman was a horrible precedent by a leftist judge who didn’t like the Trump administration. If Trump had appealed he most likely would have won.
All precedents are not equal.
The common-sense solution: Do not use your personal social media account to transmit government information.
That this issue has to be addressed at SCOTUS is absurd. People have lost the ability to think logically.
Either it is or it is not the public square. Different accounts mean nothing. Does the nature of a super market, or a public park change based on how well you are dressed?
At the heart of this case is social media or is social media not the public square?
If it is not the public square politicians should be allowed to block whoever they want whatever account they use, if it is the public square….can a politician have you escorted out of a mall because they don’t like you?