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In a closely watched case involving school board members and other public officials who block critical comments and users from their personal social media pages, the U.S. Supreme Court on Friday ruled that officials may be sued in some circumstances but set a test that will shield many posts and actions by the officials from First Amendment scrutiny.
The justices ruled unanimously that officials would be engaged in “state action” only if they have the authority to speak on the government’s behalf and are exercising that authority in specific posts on their personal social media pages.
The question of whether the officials were engaged in state action is central to whether they may block certain comments and users from their own social media pages.
“The question is difficult, especially in a case involving a state or local official who routinely interacts with the public,” Justice Amy Coney Barrett wrote for the court in Lindke v. Freed, one of two companion cases the court heard involving the same issue. “Such officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job.”
But, “while public officials can act on behalf of the state, they are also private citizens with their own constitutional rights.”
Barrett said many of the nation’s 20 million state and local government officials, including governors, mayors, and teachers, use social media for personal or official communication, or both, “and the line between the two is often blurred.”
She outlined a two-part test for when officials’ social media posts would meet the definition of official communication that constituted state action (and thus prompt an analysis into whether an official blocking a critic’s posts violated that user’s First Amendment free speech rights).
First, the official must have “actual authority” to speak on behalf of the state.
“The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the state entrusted the official to do,” Barrett said.
The second prong of the test is that the official must purport to use that authority in a particular social media post.
“If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice,” Barrett said.
She raised a hypothetical “from the offline world,” in which a school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools.
“The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions,” Barrett said. “The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs.”
Cases before the court involved school board members and a city manager
The cases the court considered were O’Connor-Ratcliff v. Garnier, involving school board members, and Lindke v. Freed, involving a city manager.
The school board members’ case stems from 2014, when Michelle O’Connor-Ratcliff and T.J. Zane were first elected to the board of the 35,000-student Poway Unified School District, north of San Diego. Both had created public Facebook accounts during their campaigns, which they converted into platforms for information about their board service and the school district. O’Connor-Ratcliff did the same with her account on X, formerly known as Twitter.
On those accounts, O’Connor-Ratcliff and Zane identified themselves as board members and posted frequently about Poway district matters, such as upcoming board meetings, status reports about an interim superintendent search, and video clips of student musical performances. They both at times used the word “official” to describe their sites, though the social media pages were not in any way operated by the school district.
Both board members blocked Christopher and Kimberly Garnier, parents who had concerns about district affairs and had posted numerous repetitive comments on the members’ social media pages. The parents sued under the First Amendment, and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that the members’ social media pages were held out as official communication and were thus state action subject to free-speech scrutiny. That court went on to rule that the board members had violated the parents’ First Amendment rights by blocking them.
The Lindke case involved the city manager of Port Huron, Mich., who used his longtime personal Facebook account to discuss city business, including in 2020 about the city’s response to the COVID-19 pandemic. The city manager blocked a frequent critic who had posted critical comments about the city’s pandemic policies. Lower courts in that case ruled that the city manager’s blocking of critics was not state action, and thus he couldn’t be held liable for blocking his critic.
Barrett wrote the opinion for the court that lays out the new test in the Lindke case. The court issued an unsigned opinion in the school board members’ case, though Barrett summarized both from the bench, including that each case was being sent back to lower courts to apply the new test.
A brief discussion of the implications of blocking a critic from a page altogether
Embedded in the court’s test, Barrett said in the Lindke opinion, is that the appearance of a public official’s personal social media page will not be the determining factor for state action, even when such pages use words like “official.”
“An act is not attributable to a state unless it is traceable to the state’s power or authority,” Barrett said. “Private action—no matter how ‘official’ it looks—lacks the necessary lineage.”
She said some social media pages are clearly operated by the government, such as a City of Port Huron Facebook page, or a page passed down from one holder of a specific office to the next. But some are ambiguous about whether they are personal or official.
“Categorizing posts that appear on an ambiguous page … is a fact-specific undertaking in which the post’s content and function are the most important considerations,” Barrett said. “Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it.”
Barrett briefly delved into the issues around an official blocking a critic from a social media page. She said “the bluntness of Facebook’s blocking tool,” for example, highlights the potential legal hazards of a “mixed-use” social-media account.
“If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts,” Barrett said. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
The American Civil Liberties Union, which had filed friend-of-the-court briefs supporting the critics whose comments were blocked in both cases, said the decision “underscores that the First Amendment restricts how the government can shape speech that takes place on social media.”
“It gives everyday Americans a way to hold officials constitutionally accountable when they censor social media content, restrict access to it, or improperly elevate certain viewpoints over others,” said Evelyn Danforth-Scott, an ACLU staff lawyer specializing in Supreme Court litigation. “At the same time, it protects public officeholders’ own free speech rights by giving them guidance on how to make clear when they are speaking as private individuals.”
Thomas Berry, a constitutional research fellow with the libertarian Cato Institute in Washington, which filed friend-of-the-court briefs in each case (supporting neither party), said the decision “strikes a reasonable balance between the general public’s right to access official state communications and the rights of government officials to exercise their own private speech.”
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