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.
“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:DONATE
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