SCOTUS and Free Speech 2024

 

ATTENTION!!! All FB friends and foes far and wide, The Supreme Court of the United States has made a ruling that affects you and me. I know crazy huh! Anyhoo, the SCOTUS has ruled that local government officials can block the public from their social media pages and NOT be in violation of the 1^st Amendment.

In the unanimous opinion in Lidke v. Freed (2023), Justice Amy Coney Barrett set guidelines for when public officials' accounts could be viewed as state action. Barrett said public officials’ social media accounts can only be considered part of their government duties if the official has the authority to speak on the state’s behalf and claims to use that authority when posting on social media. 

The court found that while public officials’ actions might look official, it is not the state acting unless there is a direct connection to that power or authority. Determining whether or not the official is exercising state power is nuanced, but Barrett said this authority has to be rooted in written law or longstanding custom. 

“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 wrote.

The second prong of the test laid out by the court looks at the intention of the officials’ speech. The court said public employees speak in an official capacity when they use speech to fulfill official responsibilities. 

“If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice,” Barrett wrote. 

The complex case before the high court sought to differentiate between government officials’ public and private use of social media.

A federal judge had found two Poway, California, school board members had violated the First Amendment by blocking parents from their Facebook pages. 

Michelle O’Connor-Ratcliff and T.J. Zane used their social media pages to share information about the school district, like reports on school visits and policy plans. The board members also requested feedback from parents, using the online platform to circulate surveys or provide information for future meeting dates. 

Two parents in the district, Christopher and Kimberly Garnier, found social media the easiest way to interact with the board members, citing limitations on discussions during board meetings and unanswered emails. 

The Garniers commented on the members’ pages, criticizing the board’s response to financial mismanagement by the former superintendent and incidents of racism. The couple spammed the member’s posts, repeatedly commenting the same thing on dozens of posts. 

Eventually, O’Connor-Ratcliff and Zane blocked the Garniers from their Facebook pages. The Garniers then responded with a lawsuit, claiming O’Connor-Ratcliff and Zane had violated their right to criticize the government in the public forum freely. A federal judge ruled that the board members' social pages should be considered state action, limiting officials’ ability to block members of the public. The Ninth Circuit affirmed. 

At the Supreme Court in October, Pamela Karlan, an attorney with the Stanford Law School Supreme Court Litigation Clinic representing the couple, cautioned the justices against creating a “magic word test” that would allow politicians to use disclaimers to block constituents. 

The court also reviewed a similar case brought by Kevin Lindke, a resident of Port Huron, Michigan, who was blocked from the city manager's Facebook page. James Freed used his Facebook page to share health guidance during the Covid-19 pandemic. However, when he began to share photos of city leaders dining at expensive restaurants, Lindke became critical of the city leader. 

After repeated comments criticizing Freed’s pandemic response, Lindke was blocked from the page. Like the Garniers, Lindke sued, claiming Freed had violated his First Amendment rights. 

Barrett said the case before the court required an analysis of whether a state official engaged in state action or functioned as a private citizen. Public officials do not give up their First Amendment rights when taking office, and in this case, Freed acted in his private capacity to block Lindke and delete his comments. So, the court found Lindke could not use Freed’s status to claim his rights had been violated. 

“The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the state, and state officials have private lives and their own constitutional rights,” Barrett wrote. “Categorizing conduct, therefore, can require a close look.” 

Barrett said considering if specific posts or comments are state action is easier than completely blocking an individual from a page. Sometimes social media pages are “mixed-use,” containing official and private speech. Barrett said public officials could face liability for blocking users from a mixed-use page because they would not be able to prevent someone from commenting on private posts without unlawfully barring them from official posts. 

“A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability,” Barrett wrote. 

The court vacated both decisions, sending them back to the lower courts to be considered on a case by case basis. with the court’s new guidance.

I agree with this ruling. The SCOTUS got it right here. There has to be a time when a local government official, or any government for that matter to be free to comment or post on social media in real time. The couple from Poway California, didn’t get the response they wanted, so they spammed the school board member's private Facebook page. That is to say, they commented with the same post over and over, to the point that the page was unusable. So, the school board member blocked them, and then the fight was on. That is not appropriate. That is akin to doxing and call flooding. Doxing is when someone posts personal information about a government official online, or call floods a police station or any other first responder station, as a form of intimidation. Those people should be blocked, and if they have a beef with a government official then there are legal and more appropriate ways to do that. The public has a right to redress their grievances with government officials, they do not have the right to harass those government officials. Some in the public believe that the government employees work for them, so they can treat them however they wish. They do this with harassing behavior, that is in fact against the law in Arizona. Government employees are people, and employees are just like everyone else, they are also private people, and have a right to as much freedom and privacy as all citizens. This nonsense has to stop, and it stops here with this SCOTUS ruling. Below is a link to the ruling text straight from the SCOTUS, for clarity, transparency, and context.

SCOTUS ruling: Lindke v. Freed, No. 21-2977 (6th Cir. 2022)