The U.S. Supreme Court Hears Argument on Government-Hosted Social Media and the First Amendment

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
AUTHOR: David Urban
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Nov 09, 2023

Last week, on October 31, 2023, the U.S. Supreme Court heard argument in two important cases concerning the First Amendment and government agencies.  Both cases present the question of when and how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.

The cases are O’Connor-Ratcliff v. Garnier involving Trustees of the Poway Unified School District near San Diego, and Lindke v. Freed, involving a City Manager in Michigan.  In both cases, members of the public posted comments on the officials’ Facebook or Twitter (now X) pages and had their comments deleted, hidden, or blocked by the officials.  The federal appellate court in Garnier found in favor of the members of the public, whereas the court in Lindke found in favor of the official.  Both cases turned on the key disputed legal issue of whether the officials’ activities on their social pages constituted state action.  First Amendment free speech protection binds only government actors, and if the officials could prove their social media pages basically operated only as their personal pages, then they could avoid liability for improper censorship in deleting comments or blocking members of the public.

In reviewing and deciding the two cases, the U.S. Supreme Court will need to resolve inconsistencies between the federal appellate courts on how to test if state action exists in this social media context.  As a very general matter, the test applied by the appellate court in Garnier emphasized how the official’s page appears to the public, whereas the Freed court emphasized how the social media page actually functioned as an extension of the work of the official’s agency.

This post describes these two cases, which illustrate how the legal issues come up in practice.  It then describes some general guidelines for public agencies regarding how to address issues of censorship on social media while awaiting the U.S. Supreme Court’s decisions.

Underlying facts of the cases:

O’Connor-Ratcliff v. Garnier involves two members of the Poway Unified School District Board of Trustees, who in 2014 created public Facebook and Twitter pages to promote their campaigns for office.  As the Court of Appeals’ opinion described: “After they won and assumed office, the two used their public social media pages to inform constituents about goings-on at the School District and on the PUSD Board, to invite the public to Board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District’s schools.”  The Garniers, parents of two children in the District, often left comments on the social media pages critical of the Trustees, and at times re-posted the same long criticisms.  The Trustees first deleted or hid these posts, and then eventually blocked the Garniers from the pages.  The Garniers thereafter sued, alleging this constituted censorship of their speech that violated the First Amendment.

Lindke v. Freed involved the Facebook page of Port Huron City Manager James Freed, who posted both personal content and content related to his job.  As the Court of Appeals’ opinion described: “Freed was an active Facebook user whose page featured a medley of posts.  He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager.  And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.”  Plaintiff Kevin Lindke took issue with how Freed was handling the pandemic response, and posted critical comments on the Facebook page.  Freed responded by deleting the posts, and eventually blocking Lindke from the page to prevent Lindke from commenting.  Freed then sued for violation of his First Amendment rights.

Oral argument before the Supreme Court:

The U.S. Supreme Court heard both cases on the morning of October 31, 2023, in an argument session that spanned about three hours to cover both cases.  Plaintiffs’ side for the most part advocated an appearance-based test for state action.  Under this test, if it appeared that the official was exercising his government authority in maintaining the page, even if it was by simply posting updates news reports about local issues, or information about upcoming decisions, then this favored a finding of state action.  Also, it would support state action if the way the individual used social media was only possible because of their office.  On the other hand, the public officials supported a test that would be less easy for plaintiffs to satisfy.  It required the existence of government requirement or control over what the official did or the official’s actual exercise of government authority through the social media presence.

There appeared no consensus among the Justices as to which test to apply, and argument focused a good deal on the Justices asking questions that explored the outer parameters of what their ruling would mean.  For example, Justice Thomas asked a couple of times whether it was important, and how it mattered, that the alleged public forum at issue resided on privately owned property in cyberspace subject to its own rules and regulations, of Facebook and X respectively.  Justice Kagan emphasized in her questions that, in developing a test for state action in the context social media, the Court was considering a medium that has changed rapidly in a short period of time and that could undergo further fundamental changes relatively soon.

With the cases now both submitted, Supreme Court decisions in the cases could issue in the next several months, but more likely toward June 2024.  The Supreme Court in its opinions will then be able to provide guidance on these important issues in time for the November 2024 election.

Practical considerations for agencies and government officials while the cases are pending:

How can agencies honor their obligations under the First Amendment yet avoid having their public officials serve inadvertently as the message board for certain types of content?  There are a number of ways (until the U.S. Supreme Court provides further guidance through its opinions in Garnier and Lindke).

First, agencies can recommend that public officials separate their personal social media presence from the pages they intend to use that have any significant relationship to their government work.  This may mean one page for personal use (ideally limited to friends or other particular connections) and one page related to the individual’s government work.

Second, for public official social media pages that do reference government work or agency operations, public officials can set up their own rules or guidelines for how their pages should operate so that their decisions to curate comments can have a good chance of complying with First Amendment standards.  Indeed, cities, counties, special districts, and other government agencies that maintain their own social media pages already often do, and should, have such policies.  An official’s putting such a policy into place involves developing it in specific written terms (ideally with the help of counsel) and then notifying social media page users of the policy. The policy can specify, for example, that obscene, defamatory, and other similar types of public comments are not permitted.  If posts are limited to certain topics or users, the policy can also specify that comments have to relate to the matter originally posted. The policy can describe that repetitive or overly long comments, subject to a specific word or other limitation, will be deleted.

In general, the policy must satisfy the “forum analysis” standards of free speech law, a primary requirement of which is that the policy operate in a “viewpoint-neutral” way.  This means that the public official in almost all circumstances cannot suppress one view on a topic yet allow comments favoring the opposing view.  In addition, the official must be able to justify the policy’s restrictions on certain types of comments in a way that will satisfy forum analysis requirements.

We will keep you advised of developments.  Because this area of law is developing rapidly, it is best to involve legal counsel in crafting policies related to social media and for which there are any First Amendment concerns.

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