Supreme Court Issues Guidelines As To When Public Officials Can Block Constituents on Social Media
“[S]tate officials have private lives and their own constitutional rights—including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms,” wrote Justice Amy Coney Barrett for a unanimous Court.
The U.S. Supreme Court issued two opinions on Friday resolving a First Amendment conflict in the lower courts over public officials’ social media use. The Court unanimously held that officials using personal social media accounts to share personal and government information may block constituents under some circumstances. Legal Insurrection covered oral arguments in the cases.
The Court held that a public official who shares government information on a personal account may block constituents if the official had not “possessed actual authority to speak on the State’s behalf on a particular matter” and had not “purported to exercise that authority when speaking in the relevant social-media posts.”
In Lindke v. Freed, a city manager blocked a constituent over alleged disparaging remarks. In O’Connor-Ratcliff v. Garnier, two school board officials blocked constituents for alleged spamming.
In both cases, the public officials identified themselves as such on their accounts, used their accounts to share personal and government information, and blocked constituents who had criticized their official conduct. Neither account purported to be an official account, and the government information shared was available from official sources.
The cases hinged on whether the officials’ blocking behavior constituted state action subject to the First Amendment because the officials disseminated government information on their personal accounts. The officials argued that although they shared some information related to their positions, they shared that information as private citizens, thus immunizing their blocking behavior from First Amendment scrutiny.
The Court heard the appeals to resolve a split between the Sixth and Ninth Circuits on the test for determining what constitutes state action when an official blocks a user on social media.
In O’Connor-Ratcliff, 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. In Lindke, the Sixth Circuit applied a “duty and authority” test, which asks whether an official had a legal duty to use a social media account to disseminate government information or whether the official acted pursuant to his legal authority when using his social media account.
The Court’s test, which looks to authority and the purported exercise of authority, incorporates elements from both approaches into a two-prong test.
Similar to the Sixth Circuit’s approach, the Court held an official must first have the authority to speak for the government on a matter for blocking to constitute state action.
The second prong announced by the Court, the purported exercise of authority, incorporates an element from the Ninth Circuit’s approach. The Court stated that the appearance of an account—whether it looks official—can help establish the purported exercise of authority leading to state action.
The Court also held that when an official includes a disclaimer that his account is solely for personal use, “he would be entitled to a heavy presumption that all of his posts were personal.”
The Court remanded both cases to the lower courts for reconsideration in light of the newly announced rule.
Lindke opinion:
O’Connor-Ratcliff opinion:
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Comments
so it is going back to the lower court … any bets …
Seems reasonable enough but I am not sure how this logic holds up when attempting to hold public officials feet to the fire when they use a personal account for official business. Does an official act/communication automatically transform the personal account into an official account? Just one act or maybe it is 3 acts; what is the magic number? What constitutes an official act?
IMO an easier/more clear distinction would have preferable as the CT hinted at in suggesting a disclaimer that it was a personal account and clearly communicated that the content didn’t constitute official govt position/speech. SCOTUS appears to have created much more work for themselves by failing to create a bright line.
Certainly repeated official acts would make it a government account. Maybe if there was only an occasional official act the remedy would be for the official to delete it, and repost it on their official account.
Sure at some point or by meeting or exceeding a certain number of acts. Yet the CT didn’t provide clear guidelines here nor define was is/is not an official act other than to create a nexus re what amounts to authority for policy making as a required component.
IMO, all these unanswered questions just create more future litigation and decisions from the CT. Far better for the CT to have simply held that using a personal account for any official communication or what could reasonably be perceived as an official act or communication automatically converts the account to a public account. Similar to how personal e-mail account and the personal electronic devices themselves are converted by using them for official acts/communication.
I would think that a public official can operate on social media in both his capacity as a citizen and as an official. If he uses a personal social media account exclusively, however, that one channel to the public must remain open so the public can communicate with him in his official capacity. If the official has an official account, than that one account should be considered the official account, and any others merely personal, no matter its content (because as a citizen he still has every right to discuss government and policy matters as does any other citizen). If an official has two accounts, he should be able to block people on his personal account(s), but those blocked could still voice their opinions to him via his official account.
Wouldn’t this have been simpler?
IMO the easier bright line is communicate about work on the work account and using the work issued electronic devices. Use your personal account and personal devices for personal, non work related stuff. If you mix work and personal then it becomes a work related account/device subject to all public disclosure, FOIA and no blocking rules. Much simpler and far less issues for future litigation to resolve.
Too difficult to follow. Perhaps it would be clearer if someone had some examples of well-known occurrences that now would violate these new rules.
The most famous example would be Trump, who turned his former personal Twitter account into an official account, so that the comments to his tweets became an official public forum to which the first amendment applied.
That decision was based on the fact that (1) he was constantly doing official business on the account. He would make official announcements on Twitter, not using an official POTUS account but his own personal account. (2) He had a government employee run the account for him, and post to it for him, as part of his official duties. Obviously he couldn’t do that if it was still his personal account. So the court concluded that this was now an official account, and thus he could not block people from it.
All Trump had to do to avoid that would have been to use his official account for business and his personal account for his personal observations. He could still talk on the personal account about what he was doing on the official account. And he could hire someone out of his own pocket to post to his personal account for him.
Great explanation. Thanks!
It seems to me that we have reached a ludicrous level of court intrusion on common sense. Our system was designed for a moral citizenry. It won’t be long before a court will be asked to decide on the legal hand to use when wiping your butt.
“Guidelines” doesn’t sound like adjudicating but legislating from the bench. The Court needs to adjudicate the particular case, not legislate about potential cases; that is the role of Congress.
“Congress shall make no law…”
The court has ruled if a public official is authorized to speak on behalf of the government on a personal social media platform, then there is a first amendment protection for the public not to be blocked.
Okay… but what if the public official asks the platform to ban such comments as a violation their “Community Standards” and the platform complies?
The Court is now reviewing a parallel case where government “asking” social media to modify their standards is coercion, and whether the public — who are third parties — does indeed suffer harm from their comments being banned.
What happens when a citizen communicating with a public official on an official account violates the platform’s TOS in a message to the official? Can the platform block the citizen (either from communicating with the official or from the platform entirely) unilaterally, as if the citizen was communicating with any other user of the platform? That is to say, does the platform have to take into account the nature of the receiver’s account when making a decision to deplatform someone for a TOS violation?
Eff em that comes with the territory of being a public official, folks gonna vent, sometimes using very inventive language and same goes for the platform who choose NOT to create a blanket TOS rule prohibiting official communication on ‘personal’ accounts. If the platform won’t make it easy on themselves to avoid controversy by instituting that simple TOS restriction then they gotta suck it up on the vitriol and harsh language the public often directs towards public officials.
Again this stuff isn’t hard if we make clear distinctions. Dip a toe in the water and you are wet, in or out, all or none, one thing or the other tests up front solve most of the problems before they arise.
I’m not really concerned with the official. My comment was concerned with unilateral action to block users (for TOS violaitons) from communicating with a public official (an action not taken for the official’s benefit). What legal blowback could be forthcoming? Without government input or coercion in the matter, but rather the exercise of an administrative process of a “private” industry enforcing it’s own platform’s rules, could they have any legal exposure because they cut off comms with an elected official?
That’s what I addressed. The platform itself should be faced with a choice:
1. Enact a TOS restriction on public officials using a personal account to communicate about their work related issues, policies. (This solves the problem entirely)
OR
2. If NO such TOS restriction is implemented by the platform then the platform must allow rebuttals from public even those rebuttals and comments which would otherwise violate the general TOS. So if the platform would normally ban someone for saying a naughty word the platform would have to waive that policy for public comments to the official who used a personal account for communication about work.
Simple. Clear. Effective. Not likely to happen this way but if CommoChief was king for a day this would be my solution. Lots of folks will obviously disagree with the draconian nature but making clear bright line rules upfront precludes downstream arguments about whether this or that meets the test for an exception or if new thing is close enough to the original this or that exception to also get its own exception. If you don’t have exceptions to start with you eliminate all that future drama.
Well these lifetime government employees want to protect those such as themselves from too much trouble. It would have been better to reduce personal protections for government employees. If they don’t like it, they can leave public service and get a real job.
This ruling is bad for America, but it’s not a surprise.