By Doug Mainwaring
Supreme Court Justice Amy Coney Barrett Justice noted that the personal social media accounts of public officials often present an ‘ambiguous’ status because they mix official announcements with personal content.
The United States Supreme Court ruled unanimously on Friday that government officials who post about work-related topics on their personal social media accounts can be held liable for violating the First Amendment rights of constituents by blocking their access or deleting their critical comments.
In a 15-page opinion, Justice Amy Coney Barrett noted that the personal social media accounts of public officials often present an “ambiguous” status because they mix official announcements with personal content.
The court ruled in two cases where people were blocked after leaving critical comments on social media accounts of public officials.
The first case involved two elected members of a California school board — the Poway Unified School District Board of Trustees — who blocked concerned parents from their Facebook and Twitter accounts after leaving critical comments.
The court upheld the 9th U.S. Circuit Court of Appeals ruling that said the board members had violated the parents’ free speech rights.
The second case before the court concerned James Freed, Port Huron, Michigan’s city manager who had blocked constituent Kevin Lindke from commenting on his Facebook page after deleting his remarks about the city’s COVID-19 pandemic policies.
Lindke believed that Freed had violated the First Amendment by doing so and sued Freed.
Freed maintained that he launched his Facebook page long before becoming a public official, arguing that most of the content on his account concerned family-related matters.
Justice Barrett explained:
Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them.
For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan — and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke’s speech.
Barrett concluded:
When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.
In the end, the high court sent Lindke’s case back to the Sixth Circuit Federal Appeals Court for a second look.
Perhaps reflecting continued ambiguity following the court’s ruling, both defendant Freed and plaintiff Lindke declared victory.
“I am very pleased with the outcome the justices came to,” Freed told ABC News in a statement. “The Court rejected the plaintiff’s appearance test and further refined a test for review by the Sixth Circuit. We are extremely confident we will prevail there once more.”
Lindke was more effusive and told ABC News that he was “ecstatic” with the court’s decision.
“A 9-0 decision is very decisive and is a clear indicator that public officials cannot hide behind personal social media accounts when discussing official business,” said Lindke.
Legal experts called attention to the persistence of gray area in the law regarding social media due to the narrowness of the court’s decision.
“This case doesn’t tell us much new about how to understand the liability of the 20 million people who work in local, state, administrative or federal government in the U.S. … just that the question is complicated,” Kate Klonick, an expert on online-platform regulation who teaches at St. John’s Law School, told The Washington Post.
Katie Fallow, senior counsel for the Knight First Amendment Institute at Columbia University, told the Post that the court’s ruling does not sufficiently address public officials’ widespread use of personal “shadow accounts,” which constituents often perceive as official.
Fallow said the court was “right to hold that public officials can’t immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.”
We are disappointed, though, that the Court did not adopt the more practical test used by the majority of the courts of appeals, which appropriately balanced the free speech interests of public officials with those of the people who want to speak to them on their social media accounts.
According to The Hill, the Biden administration and a bipartisan group of 17 states and National Republican Senatorial Committee sided with officials, arguing in favor of their blocks, while the ACLU backed the cons
Friday’s ruling is only the first of several this term that deal with the relationship between government and social media.
“On Feb. 26, the justices heard argument[s] in a pair of challenges to controversial laws in Florida and Texas that seek to regulate large social-media companies,” explained Amy Howe on Scotusblog.com. “And on Monday the justices will hear oral arguments in a dispute alleging that the federal government violated the First Amendment by pressuring social media companies to remove false or misleading content. Decisions in those cases are expected by summer.”
