Justices Consider Who Public Officials Can Block on Social Media

The US Supreme Court will consider how to adapt current free speech protections to social media accounts where public officials interact with constituents when the justices return for arguments this week.

In a pair of cases to be heard Tuesday, the justices will decide if those officials run afoul of the First Amendment when they block individuals on social media accounts that highlight both professional and personal affairs.

Advocates supportive of robust protections say there is no need for the justices to reinvent the current standard for measuring free speech rights.

Any time a public official creates a forum, there are going to be limits on what they can do to restrict criticism, said Gregg Leslie, the executive director of the First Amendment Clinic at Arizona State University’s law school. “That used to mean something out in public—in a park or a public building.”

Social media is no different, said Leslie, who filed an amicus brief in support of those challenging the blocking of private individuals. “It really doesn’t have to be seen as revolutionary.”

Modern Public Square

The two cases the justices will hear involve Facebook and X, the site formerly known as Twitter.

In O’Connor-Ratcliff v. Garnier, the US Court of Appeals for the Ninth Circuit found that two members of a California school board violated First Amendment free speech protections when they blocked members of the public from interacting with Facebook and Twitter pages created during their campaigns.

The Sixth Circuit came to the opposite conclusion in Lindke v. Freed, finding that a local Michigan official didn’t violate the Constitution’s free speech protections when blocking an individual from a social media page that shared both professional and personal information.

Both cases highlight the prominent role that social media has taken in allowing government officials to speak with and inform the public.

“Social media has become a critical space not only for public discourse but for the dissemination of information to the public,” said Jennifer Safstrom, a First Amendment scholar at Vanderbilt Law School.

School districts will post transportation and weather information, she said. And local governments will announce new laws or public meetings on them.

So access to those spaces is critical to ensure that the public is aware of what’s going on in our government institutions, said Safstrom, who also filed an amicus brief in support of those who were blocked. They are “the modern public square.”

Nine Greatest Experts

Latham & Watkins partner Roman Martinez said the new medium could be a problem for the justices.

“We’re dealing with a doctrine that’s been built up dealing with a certain type free speech marketplace that’s just evolved radically with the advent of the internet and social media,” Martinez said at a Sept. 20 event.

“Maybe the existing doctrine doesn’t fully, neatly map onto this new scenario” he said.

Moreover, the nine Supreme Court justices aren’t particularly tech savvy and may not use social media in the same way most Americans do.

“You know, these are not like the nine greatest experts on the internet,” Justice Elena Kagan said last term during arguments in a pair of cases involving internet protections.

But Robert Corn-Revere, a First Amendment lawyer at the Foundation for Individual Rights and Expression, said the question of how First Amendment law applies to new public forums is actually an “old question.”

The printing press was the new medium for speaking with the public at the time the First Amendment was ratified, Corn-Revere said. He also filed an amicus brief in the case in support of the blocked individuals.

Free speech protections were later updated to include film, radio, and eventually the internet, Corn-Revere said. The First Amendment was “designed to deal with new media.”

And all sides seemingly agree that social media, if being used as a public forum by government officials, should be protected by the First Amendment, said Alex Abdo, the litigation director of the Knight First Amendment Institute, which also filed an amicus brief in the case siding with the blocked individuals.

“The challenge online is figuring out when they are acting like a public official and private person,” Abdo said.

Public officials do “not lose all individuality or personal freedoms, despite holding an important role in government,” James Freed, one of the officials who blocked constituents in the case, said in his brief.

But the question of when a person moves from private to public is one that pops up offline, too, Abdo said.

The test can be “messy,” he said. But the question of whether “the First Amendment moves online” with government officials isn’t.

The cases are O’Connor-Ratcliff v. Garnier, U.S., No. 22-324 and Lindke v. Freed, U.S., No. 22-611.