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Donald Trump’s Twitter account was so pivotal to his presidency, he would often surprise White House staffers with a tweet that changed the news cycle—leaving them scrambling to pick up the pieces. Sure, this was the same account he’d used to rant about celebrity breakups and the New York Yankees before his run for office, and he continued to post about trivial matters as president. But he also used it to espouse his political priorities and boast of administration accomplishments. His account was arguably a more authoritative source of government information than his irregular press briefings.
So in 2017, the Knight First Amendment Institute sued him for allegedly violating the constitutional rights of his internet critics when he blocked them from his account.
Cutting off dissenting Americans from viewing Trump’s account and blocking them from commenting on his posts was a flagrant violation of their right to access publicly available government information, a First Amendment principle cemented by court precedent. This was the opinion of the 2nd Circuit Court of Appeals, which affirmed a lower court decision against Trump in 2020, saying Trump’s account constituted a “public forum” and that excluding critics was “unconstitutional viewpoint discrimination.” Ultimately, in 2021, however, the Biden administration took over—so the Supreme Court vacated the decision and ordered the 2nd Circuit to dismiss the matter as moot.
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But today, perhaps inspired by the original Trump case, the nine justices heard oral arguments for two similar legal challenges. This time, the litigants aren’t nearly as high-profile as Trump, but the stakes for the public are just as high.
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In the two cases argued this week, the court is evaluating not whether the First Amendment rights of the blocked individuals were violated, but merely whether the public officials were acting in their official state capacity on their social media pages.
First, the court heard arguments in O’Connor-Ratcliff v. Garnier, in which two trustees of a California school district created Facebook and Twitter accounts, deleting critical comments from two school-district parents before blocking them outright. The Garniers, the parents who sued, won at the district court level and then at the 9th Circuit Court of Appeals—the courts found that, like in the Trump case, the trustees’ accounts were public forums and they violated the Garniers’ First Amendment rights by blocking them.
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In the second case, Lindke v. Freed, the city manager of Port Huron, Michigan, used a Facebook page to sometimes post about government business but mostly to post personal updates. When the pandemic started, he began posting public health updates to the page, too.
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But after a citizen made critical comments on the Facebook page, the city manager blocked him, sparking a similar lawsuit. In this case, however, the public official won at the district court level and then at the 6th Circuit Court of Appeals. The circuit court said that “Freed didn’t transform his personal Facebook page into official action by posting about his job.” It held that the only real scenario in which a public official would be acting in a state capacity in such a circumstance would be if the duty to maintain such a page were passed into law—or by using state resources to do so.
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While stopping short of adopting the 6th Circuit’s requirements, the Biden administration came to the Supreme Court somewhat sympathetic to its ruling. Lawyers from the solicitor general’s office largely argued in favor of unfettered ability for public officials to block as they see fit.
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The pro-blocking advocates at the court seemed mostly concerned about a separate free-speech issue—the chilling of government employees’ own speech rights under the First Amendment.
That’s a right that public employees have, but that felt largely hypothetical in these cases, as none of the sued officials were really prevented from speaking. (Freed, the city manager, did deactivate his Facebook page after he was sued—at most, an example of chilled speech from the suit.) But functionally, these two cases are about government officials using their social media accounts to sometimes provide government information and to sometimes post personal updates. It’s ultimately a question of whether that kind of commingled activity makes their account always or never or merely circumstantially attached to their state duties—perhaps on a post-by-post basis, a possibility the justices repeatedly probed.
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These cases aren’t so simple. In fact, they’re rather convoluted, and there doesn’t seem to be an easy answer the justices can necessarily turn to. The case law and legal principles they’ll consider have more to do with something called the state action doctrine—and complicated determinations of when someone is acting in their government capacity rather than a personal one—than issues of First Amendment precedent. (Issues like these often come up involving incidents with off-duty police officers, for example.)
But in probing the litigants in oral arguments, the nine justices—never the most tech-literate folks in the world—asked poignant questions about how to make this determination between personal and government use. Further, they seemed to understand the stakes for citizens.
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In one exchange, Justice Elena Kagan invoked the Trump case: “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,” she said. “It was an important part of how he wielded his authority. And to cut—to cut a citizen off from that is to cut a citizen off from part of the way that government works.”
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Kagan later noted that “more and more of our democracy operates on social media” and, after calling the Justice Department’s proposed legal test “archaic,” said she’s worried about “how much citizens will be foreclosed from participating in our democracy.”
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Read More Katie Fallow, a senior counsel for the Knight Institute who brought the suit against Trump, said something along the same lines. If the Supreme Court adopts a test whereby public officials are only public officials on social media under a very narrow set of circumstances, she told me, the result will be “less free speech and less participatory democracy.”
The Supreme Court is evaluating different tests to determine whether and when a public official is acting in a state capacity on private platforms like Facebook and Twitter, an important standard to hash out. But Kagan is right: People increasingly access government information—and officials—on social media. They shouldn’t be cut off because they asked a tough question of a person in power.
Plus, aren’t many Americans more likely to tweet at their elected officials than to show up to a town hall meeting? I sure am.
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