WASHINGTON — The Supreme Court is delving into a legal issue left unresolved when then-President Donald Trump prevented critics from following his posts on Twitter: whether public officials can be sued for blocking or muting unwelcome voices.
The justices are hearing oral arguments in two cases involving school board members in Southern California and a city manager in Michigan. While the officials are far less prominent than Trump, the legal dispute is the same as in the claim he faced — namely, does blocking someone on social media give rise to a free speech violation under the Constitution’s First Amendment?
At issue is whether a public official’s posts and other social media activity constitutes part of their governmental function. If it does, then blocking someone from following an official could constitute “state action” that could give rise to a constitutional claim.
With public officials increasingly use social media to interact directly with voters, the Supreme Court’s ruling will set the rules of the road for future cases.
Trump was sued while serving as president, with the courts ruling against the president, noting that he often used his Twitter account to make official announcements. But that lawsuit was tossed out as moot once he left office in January 2021. At that point, Twitter had disabled Trump’s account, although the company’s new owner, Elon Musk, has since reversed course as part of a major overhaul that has included changing the social media site’s name to X. In other disputes, however, courts have reached differing conclusions.
The California case arose after two members of the Poway Unified School District Board of Trustees, Michelle O’Connor-Ratcliff and T.J. Zane, blocked parents Christopher and Kimberly Garnier from commenting on their Facebook page in 2017. O’Connor-Ratcliff also prevented Christopher Garnier from responding to her Twitter posts. Zane has since left office.
While the Garniers’ comments were lengthy and repetitive, they were not profane or violent, the San Francisco-based 9th U.S. Circuit Court of Appeals found in a 2022 ruling for the couple that upheld a similar decision from a federal judge in the Southern District of California. The appeals court concluded that the elected officials were acting in their official capacities.
The dispute in Michigan began in March 2020 when Port Huron City Manager James Freed, whose Facebook page described him as a “public figure,” posted information there about the city’s efforts to deal with the Covid-19 pandemic. After resident Kevin Lindke posted comments criticizing the city’s response, Freed blocked him.
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Freed argue that the no-longer-active Facebook page was a personal page that he used to share pictures of his family and comment on his daily activities. The 6th U.S. Circuit Court of Appeals, upholding a lower court decision, agreed in June of last year, ruling that Freed was not acting in his official capacity and thus his Facebook activity did not constitute state action.
The Biden administration has filed briefs backing the officials, taking a similar position as the Trump administration did over Trump’s Twitter account.
Solicitor General Elizabeth Prelogar wrote in court papers that public officials are engaging in state action only when using a private service like a social media platform to take government actions.
She argued that “merely being a public official is not sufficient to establish that the official has engaged in state action.”
The two cases being argued Tuesday are part of a set of social media-related free speech issues that the court is wrestling with in its current term, which runs until June.
Later in the term, the justices will hear oral arguments on the constitutionality of Republican-backed laws in Florida and Texas that would prevent social media companies from banning users for contentious rhetoric.
The court will also weigh claims that the Biden administration has unlawfully put pressure on social media platforms to remove certain content, a form of coercion dubbed “jawboning.”
