Justices Use Hypotheticals to Test Bounds of Free Speech Online

The justices leaned heavily on hypotheticals to determine when public officials run afoul of free speech protections during more than three hours of arguments.

In a pair of cases argued back-to-back, the justices considered Tuesday whether the First Amendment protects individuals from being blocked by public officials on social media like Facebook and X, the site formerly known as Twitter.

As they’ve often done in other cases, the justices used hypothetical situations to assess varying tests offered by advocates and lower courts and get to an outcome that could reach beyond the cases in front of them to provide guidance to government actors and lower courts.

Real World Hypo

Jones Day’s Hashim Mooppan, who represented some of the public officials in the case, said the important question was whether the official was speaking or acting in a way that any private citizen could.

“So that means President Trump’s Twitter account was also personal,” said Justice Elena Kagan.

The question of social media blocking had earlier bubbled up to the high court in a case about then-President Trump’s social media accounts, which was nixed once he was no longer in office.

“I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Kagan said. “It was an important part of how he wielded his authority.”

“And to cut a citizen off from that, is to cut a citizen off from part of the way that government works,” she said.

Emergency Hotline

Moreover, Justice Sonia Sotomayor wondered if that would allow government officials to discriminate against particular people by dressing their actions up as private action that any citizen could undertake.

“So let’s assume a mayor says, I’m setting up a hotline for emergencies on my Facebook or Twitter, and if you have an emergency, call that hotline, and I will use the power of my office to set in motion government response for your emergency,” Sotomayor said.

Though the call to get the emergency response might be government action, Mooppan said, the hotline wouldn’t be if funded with the mayor’s own money.

“He could exclude Muslims, Jews, whoever he wanted to exclude, blacks, whatever, women, because that’s a social account?” Sotomayor asked.

Farm Security

That didn’t seem to sit well with Justice Samuel Alito either, who brought the hypos offline.

“So the mayor holds a meeting on public property and everybody can go and express their views,” Alito said, setting up the hypo. “And after that meeting, the mayor says: ‘Well, that didn’t go well. There was an awful lot of opposition expressed to this.’”

“I’m going to post people at the entrance, and we’re going to exclude the people who spoke vociferously and articulately against my proposal,” Alito said. “Is that allowed?” he asked Justice Department lawyer Sopan Joshi, who argued on the side of the government officials.

Thanksgiving Dinner

On the flip side, Alito asked one of the blocked individual’s attorney, Stanford’s Pamela Karlan, where the limit would be.

“So the mayor is in the grocery store and is repeatedly approached by constituents,” Alito said. And the mayor, who really doesn’t want to be bothered, nevertheless listens to supporters but turns away a known opponent.

Is that official action that is subject to First Amendment limits, Alito asked.

Not everything a public official does—even if it touches on their job—is official action, Karlan responded.

“For example, talking at Thanksgiving dinner, somebody says pass the gravy and you say: ‘And I also passed a bill last month.’ Yes, that would be that would be private,” Karlan said.

Hating Cats, Kids

But Gorsuch wondered what there was room for limiting certain behaviors—in particular, could an individual be blocked because they were harassing the public official?

“What if the individual harasses the public official on all of his personal cat pictures and children pictures, and he finally gets fed up and he just blocks him?” Gorsuch asked Arnold & Porter’s Allon Kedem, who represented one of the blocked individuals.

When Kedem said the First Amendment provides room to block harassers, even if they are on an unquestionably official page, Gorsuch interjected.

“No, no. All the harassing in my hypothetical has to do with cats,” Gorsuch said. “The commentator hates cats. And maybe he hates your children, too.”

The cases are O’Connor-Ratcliff v. Garnier, U.S., No. 22-324, argued 10/31/23 and Lindke v. Freed, U.S., No. 22-611, argued 10/31/23.