By: Akshay Kumbar
On October 31, 2023, the Supreme Court of the United States held oral arguments for two cases that presented a circuit split issue of First Amendment rights and protections for public officials and how they can control social media accounts.[1] There is no debate that the First Amendment restricts government regulation of private speech but does not restrict purely private speech.[2]
The question presented to the Supreme Court in O’Connor-Ratcliff v. Garnier, is whether a “public official engage[s] in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, which the official uses to communicate about job-related matters with the public.”[3] In this case, the petitioners are two elected members of the Poway Unified School District Board of Trustees and used personal Facebook and Twitter accounts to communicate with the public and relay information from the School District. The respondents, who are two parents of children that attend the schools in the District, “spammed” petitioners’ posts relating to a number of issues—including race and school finances.[4] The Ninth Circuit Court of Appeals found that there was a close nexus between the petitioner’s use of their Facebook and Twitter pages and their official position.[5] Furthermore, they held that the use of the social media accounts was directly related to their official positions and the petitioners were acting under color of state law.[6] Thus, it was a violation of respondent’s first amendment rights to block them from viewing the social media accounts.[7]
The next case on the Supreme Court’s docket was Lindke v. Freed; which presented the question whether “a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”[8] The facts in this case are similar to Garnier. Here, the respondent was appointed as City Manager of Port Huron, Michigan and connected with the public, like many public officials, through a personal Facebook account.[9] The petitioner, a resident of Port Huron, commented on the petitioner’s posts on issues regarding COVID-19 pandemic policies. The respondent then blocked petitioner from further commenting.[10] The Sixth Circuit Court of Appeals held that respondent’s Facebook page was not transformed into an official action by posting about his job, therefore, there was respondent’s First Amendment rights were not violated.[11]
The two circuit courts articulated their own tests to separate state action from private action on social media platforms.[12]
The Ninth Circuit Court of Appeals uses a similar test compared to the Fourth, Second, and Eighth circuits.[13] This court analyzes whether the use of accounts were “an organ of official business,” if the pages were “clothed in the power and prestige of their offices,” and if the pages were created to “perform actual or apparent duties” of the offices.[14]
The Sixth Circuit Court of Appeals stated that they reject the Ninth Circuit’s test and implemented their own in Lindke.[15] The court articulates a framework that looks at whether the public official uses the account pursuant to his “actual or apparent duties” or using his “state authorities.”[16]
After oral arguments, the Supreme Court has to decide whether they will use the Ninth or Sixth Circuits’ tests to determine future cases that may arise from public official’s use of social media.[17] It is difficult to determine how the Court will decide on this issue; however, they could lean towards the Ninth Circuit test based on its precedent on this issue.
The leading case on this issue is Knight First Amendment Inst. at Columbia Univ. v. Trump, which decided that former President Trump was in violation of First Amendment rights to those individuals that he blocked from viewing his official Twitter account.[18] In deciding this case, the Second Circuit Court of Appeals pointed to several factors that indicated the President’s Twitter account was “public [and] non-private.”[19] First, the account was presented as belonging to and operated by the President himself.[20] Second, since Trump’s inauguration, he had consistently used the account on a public basis for “communicating and interacting with the public about his administration.”[21] These two factors are the same ones cited to and used in Garnier, which is the majority approach among circuit courts.[22] It would seem counterintuitive for the Supreme Court to hear a circuit split on an issue that have seen before; however, Knight was vacated shortly after President Biden was elected into office.[23] Wherefore, the Supreme Court did not decide the merits on the case and remanded to the Second Circuit Court of Appeals to render the case moot—because President Trump was no longer in control of the account.[24]
[1] Jameel Jaffer, What Matters Most in the Supreme Court’s Upcoming Social Media Cases, The New York Times, (October 31, 2023), https://www.nytimes.com/2023/10/31/opinion/social-media-supreme-court-democracy.html.
[2] U.S. Const. amend. I.
[3] Petition for Writ of Certiorari at i, O’Connor-Ratcliff v. Garnier, No. 22-324 (Oct. 4, 2022)
[4] Id. at 2.
[5] Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1170 (9th Cir. 2022).
[6] Id. at 1173.
[7] Id. at 1183.
[8] Petition for Writ of Certiorari at i, Lindke v. Freed, No. 22-611 (Dec. 29, 2022).
[9] Id. at 2.
[10] Id.
[11] Lindke v. Freed, 37 F.4th 1199, 1207 (6th Cir. 2022).
[12] Ariane de Vogue, Supreme Court considers when the government can block followers on social media, CNN, (October 31, 2023, 3:14:00 PM ET) https://www.cnn.com/2023/10/31/politics/supreme-court-social-media-first-amendment/index.html#:~:text=Several%20of%20the%20justices%20noted,official%20disagrees%20with%20their%20comments.
[13] Garnier, supra note 5, at 1177.
[14] Id.
[15] Lindke, supra note 11, at 1206.
[16] Id. at 1204.
[17] Jaffer, supra note 1.
[18] Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019), cert. granted, judgment vacated as moot sub nom.
[19] Id.
[20] Id. at 235.
[21] Id.
[22] Garnier, supra note 6.
[23] Knight First Amendment Institute at Columbia University, Supreme Court Ends Long-Running Lawsuit over Trump’s Now Defunct Twitter Account (Apr. 5, 2021), https://knightcolumbia.org/content/supreme-court-ends-long-running-lawsuit-over-trumps-now-defunct-twitter-account
[24] Biden v. Knight First Amendment Inst. at Columbia Univ., 141 S. Ct. 1220, 1221 (2021) (Thomas, J., concurring).
