High Court to Review Constitutionality of Officials Blocking Online Critics

The Supreme Court on Monday granted review of two cases concerning questions about whether it's constitutional for public officials to block critics on social media.

The high court granted certiorari in O’Connor-Ratcliff v. Garnier (docket 22-324), originating from the 9th U.S. Circuit Court of Appeals, and Lindke v. Freed (docket 22-611), a case before the 6th U.S. Circuit Court of Appeals, according to Monday’s order list.

The Supreme Court in April 2021 threw out a similar First Amendment lawsuit over President Donald Trump’s personal Twitter account. The Knight First Amendment Institute at Columbia University sued Trump in July 2017 for blocking at least seven users from his Twitter account after they criticized him. A district court found that Trump violated the First Amendment, and the 2nd U.S. Circuit Court of Appeals affirmed the decision. The high court dismissed the case as moot given Trump was no longer in office.

O’Connor-Ratcliff v. Garnier involves school board officials in Poway, Calif. Christopher and Kimberly Garnier, parents of students in the district, sued board members Michelle O’Connor-Ratcliff and T.J. Zane for blocking them on Facebook and Twitter, arguing it was a First Amendment violation. According to the Garnier brief, the plaintiffs are “civic-minded constituents who have regularly attended” board meetings and have raised concerns about board mismanagement and “racist bullying.” Christopher Garnier is black.

O’Connor-Ratcliff and Zane used personal social media pages for their election campaigns, and once elected, they listed official titles on those pages. The 9th Circuit ruled in favor of the Garniers in July, saying O’Connor-Ratcliff and Zane violated the First Amendment. When state actors enter the “virtual world” and invoke “government status to create a forum for such expression, the First Amendment enters with them,” the ruling said. The court noted that this isn’t to say that every social media account created by a public official is subject to constitutional scrutiny, but the court found the board members used and promoted their government authority on their personal pages. Blocking the Garniers on social media amounted to state action just as blocking them at public meetings would, the Garniers argued, asking the Supreme Court to deny certiorari.

Lindke v. Freed concerns Kevin Lindke’s First Amendment claim against James Freed, a city manager in Port Huron, Mich., who blocked and censored Lindke on his personal Facebook page. The 6th Circuit in June found Freed wasn’t acting as a state actor when he blocked Lindke. Freed used his personal Facebook page, which listed his official title, to communicate about his personal and professional life, according to filings. That included posts about COVID-19 and government advisories on the issue. Lindke criticized Freed’s posts about government policies, and Freed responded by deleting his posts and eventually blocking him.

The 6th Circuit noted that case law is “murky” as to when a state official “acts personally and when he acts officially.” It found that Freed ultimately maintained his Facebook page in a “personal capacity,” noting that no state law or regulation “compelled” Freed to operate his Facebook page. Lindke argued Freed operated the page as part of his professional duties as city manager. The court applied a two-part test to determine whether Freed was acting as a state official: social media activity is state action when it’s part of the officials’ “actual or apparent duties,” or if it couldn’t have been done in the same way “without the authority of” the officials’ office. Freed didn’t “operate his page to fulfill any actual or apparent duty of his office,” the court said. “And he didn't use his governmental authority to maintain it. Thus, he was acting in his personal capacity—and there was no state action.”