These Public Officials Blocked Critics on Social Media. Was That Constitutional?

As I noted in my column last week, public officials of both major parties are united in thinking they should not have to put up with irksome criticism when they use their social media accounts for official purposes. Politicians ranging from Donald Trump to Rep. Alexandria Ocasio-Cortez (D–N.Y.) have asserted the prerogative to block users whose opinions annoyed them. This week the U.S. Supreme Court heard two cases that raise the question of whether and when such blocking violates the First Amendment.

One case, O'Connor-Ratcliff v. Garnier, involves two members of a southern California school board, Michelle O'Connor-Ratcliff and T.J. Zane, who were annoyed by criticism from two parents of students. Christopher and Kimberly Garnier "frequently left comments critical of" O'Connor-Ratcliff and Zane on the board members' pages, "sometimes posting the same long criticisms repeatedly," the U.S. Court of Appeals for the 9th Circuit noted last year. O'Connor-Ratcliff and Zane "eventually blocked the Garniers entirely from their social media pages."

O'Connor-Ratcliff and Zane had used their Twitter and Facebook accounts to promote their campaigns for office and then, after they were elected, "to inform constituents about goings-on at the School District and on the [school 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." Given the ways in which the board members used their accounts, the 9th Circuit ruled, their decisions to block the Garniers amounted to state action inconsistent with the First Amendment.

The other Supreme Court case dealing with this issue, Lindke v. Freed, involves Port Huron, Michigan, City Manager James Freed. In addition to using his Facebook account for personal purposes, the U.S. Court of Appeals for the 6th Circuit noted last year, Freed "posted about some of the administrative directives he issued as city manager," including COVID-19 policies "he initiated for Port Huron and news articles on public-health measures and statistics." One resident, Kevin Lindke, "didn't approve of how Freed was handling the pandemic." Freed "didn't appreciate" Lindke's comments, so he deleted them and eventually blocked Lindke altogether.

In contrast with the 9th Circuit's decision regarding O'Connor-Ratcliff and Zane, the 6th Circuit ruled that Freed's blocking of Lindke did not qualify as state action. "Social-media activity may be state action when it (1) is part of an officeholder's 'actual or apparent dut[ies],' or (2) couldn't happen in the same way 'without the authority of [the] office,'" the appeals court said, quoting Waters v. City of Morristown, a 2001 6th Circuit decision. Because "Freed maintained his Facebook page in his personal capacity," the court said, his actions did not meet that test.

During oral arguments in these two cases on Tuesday, the justices grappled with the implications of that test and possible alternatives. In O'Connor-Ratcliff v. Garnier, Hashim Mooppan, the lawyer representing the school board members, argued that a government official is free to block critics who offend him unless he explicitly says, "This is a page I'm running in my official capacity." That claim prompted Justice Elena Kagan to note the elephant in the room. The implication, Kagan said, was that "President Trump's Twitter account was also personal."

Kagan was referring to a 2019 decision in which the U.S. Court of Appeals for the 2nd Circuit ruled that then-President Trump had violated the First Amendment by blocking critics on Twitter. "Once the President has chosen a platform and opened up its interactive space to millions of users and participants," the appeals court said, "he may not selectively exclude those whose views he disagrees with." Although that decision became moot after Trump left office, Kagan seemed to find its reasoning compelling.

Mooppan said that case was different because Trump used "a government staffer to help him run the page." But suppose he didn't, Kagan said. If Trump wrote all of his tweets himself, would he have been free to decide who could participate in the ensuing discussion based on whether he liked what they were saying? Yes, Mooppan said.

Kagan noted that Trump seemed to be doing "a lot of government on his Twitter account" by "announcing policies" and appointments. "I don't think a citizen would be able to really understand the Trump presidency…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 a citizen off from that is to cut a citizen off from part of the way that government works."

Mooppan likened Trump's use of his Twitter account to "a campaign rally" where he made "an official announcement." Although that "might be viewed as official in some sense," he said, it "wouldn't convert the campaign rally into a government forum where there was a constitutional right to enter." Likewise, if Trump had communicated the same messages to an audience at Mar-a-Lago, "it wouldn't somehow convert his residence into government property."

Public officials "retain their First Amendment rights to decide who can participate in a community discussion that they host at their own property," Mooppan said. "They are thus free to block users from their personal social media pages, unless they chose to operate those pages in their official capacities instead."

The Biden administration, which filed briefs supporting the government officials in both cases, endorsed the idea that their social media accounts should be viewed as private property. But several justices seemed skeptical of that approach.

"The fact that it was his personal property seems neither here nor there," Kagan said. If "he was doing government on it and wielding his authority on it and announcing policy on it…it was part of the way government operated." During the arguments in Lindke v. Freed, Kagan called the distinction drawn by the Biden administration "archaic," noting that "more and more of our government operates on social media."

Justice Samuel Alito likewise did not think the distinction between private and government property was helpful in this context. "In the physical world," he told Masha Hansford, an assistant to U.S. Solicitor General Elizabeth Prolegar, during the arguments in Lindke v. Freed, "practical limitations severely limit the ability of government officials to move what look very much like government events or functions onto private property….Your property-based rule may make more sense in that world, but it doesn't cost anything to open a Facebook page. And so to make so much turn on who owns the Facebook page seems quite artificial."

Chief Justice John Roberts seemed inclined to agree. "I was very surprised in reading the brief to see all the emphasis on private property," he said. "Usually, we're told in these social media cases that it's not a question of a physical asset….In what sense is this really private property?"

The 2nd Circuit and the 9th Circuit instead emphasized the use to which officials put their ostensibly private social media accounts. But that approach raises the question of how much official use is necessary to invoke a First Amendment right to participate in the discussion.

In the California case, Justice Clarence Thomas noted during oral arguments in Lindke v. Freed, "there were only three instances" in which the school board members used their accounts for personal posts. But in Freed's case, he said, "there's quite a bit that is
personal." Allon Kedem, the attorney representing Lindke, conceded that "there were certainly a lot more personal posts." But he noted that "the ratio of job-related posts to personal posts changed dramatically at the start of the pandemic, as you would expect, because a lot of the services and the way that he was doing his job migrated online."

Kedem argued that Freed, like Trump, had turned his account into a channel for communicating with his constituents. But that purpose, Justice Brett Kavanaugh suggested, is hard to distinguish from the more personal aim of seeking moral support, or even constructive criticism, from a friendly audience: "Elected officials and appointed officials rely on groups of people who are supporters, friends, people they've known, people that are fair-minded, not people that are just going to come and scream at them, to get advice, thoughts, including negative and critical thoughts, but they want to exclude, you know, the person who's the jerk who's going to interrupt the whole thing."

Similarly, Alito worried that the Garniers' First Amendment claim impinged too much on the private lives of public officials. Suppose a mayor is "in the grocery store and is repeatedly approached by constituents," Alito said. The mayor "really doesn't want to be bothered but listens to supporters and people who are sympathetic to the mayor's program, but when somebody who is a known opponent approaches the mayor, the mayor says, 'Look, please call my office.'" Is that state action?

When public officials are "clearly off duty," the Garniers' lawyer, Pamela Karlan, replied, "they're not doing their job." But when they "maintain a forum" for discussion of job-related matters where "people can comment and people can talk to each other," she said, "that would be state action."

Alito seemed unsatisfied by that distinction. "Elected officials have told me they're always on call," he said. "They're always doing their job. They're always being approached by constituents."

But is it really so far-fetched to suggest there is an important difference between a mayor pestered by constituents at the grocery store and, say, a mayor presiding over a city council meeting? In the latter context, he plainly could not exclude, silence, or remove members of the public based on their viewpoints. The question is when social media discussions are analogous to that public forum. Given Kagan's observation that the work of government nowadays is conducted largely on social media, including ostensibly personal accounts, "never" seems like an unrealistic answer.