The Supreme Court issued a pair of unanimous decisions Friday on a subject that has roiled the waters at all levels of government. The question: When do public officials—elected or unelected—violate the First Amendment by blocking critics from their personal social media pages.
In Michigan and California, outraged citizens sued public officials who did that. In one case, two elected local school board members in Poway, Calif., blocked persistently critical parents from their social media pages. And in Port Huron, Mich., a local gadfly sued the unelected city manager, James Freed, after being blocked from Freed's facebook page.
The gadfly and the city manager have very different views of reality.
Gadfly Kevin Lindke maintained that city manager Freed violated his right to speak by blocking him from responding to things Freed said on his page about Covid-19 policy and other matters.
"Mr. Freed was... putting out policy directives," Lindke said. "He was issuing press statements, and this was the only place the information was being relayed to the community."
City manager Freed replied that was simply not true, that he did answer constituent questions, and point them to press releases and other sites for local information. But "80% of the posts are my personal family photos, pictures of my dog," and the like, he said. "Had I thought for a moment that this page was public and that I didn't control it, I would never have posted photos of my little girls or my wife."
The Supreme Court didn't decide who is right in this dispute. But it laid down guidelines for the lower courts to use in assessing the facts.
Writing for the court, Justice Amy Coney Barrett said that "a post that expressly invokes state authority to make an announcement not available elsewhere is official," and members of the public are entitled to make comments in response. But "a post that merely repeats or shares otherwise available information is more likely personal," and the owner of the page may well be able to block critical or unwelcome comments.
Still, she said that evaluating "an ambiguous page" like Freed's is a fact-specific undertaking in which the posts "content" is the most important consideration.
Does all this clarify the rules of the road in such disputes?
Maybe yes, maybe no.
"I think it did," says Amanda Karras, the executive director of the International Municipal Lawyers Association. "I think we have a clarity than we didn't before." And she pointed to a variety of specifics in the court's opinion, noting that "Justice Barrett says in the opinion if you put up a disclaimer that says the views expressed herein are my own or this is the personal page ... that's going to go a long way" toward "supporting the idea that this was a private account."
But Katie Fallow, senior counsel for the Knight First Amendment Institute at Columbia University, is less optimistic.
"I do think they tried to create a simpler test," she says. But she adds that it remains to be seen how workable the new test is, especially when a public official mixes personal and official material on his or her page.
Her advice to public officials is succinct: "You should keep two accounts. Keep your personal stuff personal and your official stuff official."
If all of this sounds familiar, that's because when Donald Trump was president, he used his personal Twitter account to communicate with the public, and blocked his critics. Before he left office, two federal appeals court ruled that was illegal.
Friday's decision was the first of several social media controversies that the court is hearing this term. In February, the court heard two cases testing state laws that bar social media companies from removing posts based on the viewpoints that are expressed. And next Monday, the court hears arguments in a case testing whether Biden administration officials may be barred from contacting social media companies about online information that they view as false and dangerous.
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