(Bloomberg) -- The US Supreme Court debated whether public officials can be sued for restricting access to their social media feeds in cases that evoked former President Donald Trump’s efforts to block people from his Twitter account.
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Hearing the first of several social media clashes in their 2023-24 term, the justices on Tuesday weighed how the First Amendment’s free speech protections apply when government officials use their private accounts to discuss public business.
Trump was conducting “a lot of government on his Twitter account,” Justice Elena Kagan said. “It was an important part of how he wielded his authority, and to cut a citizen off from that is to cut a citizen off from part of the way that government works.”
The clash will affect the rights of what Justice Brett Kavanaugh, whose wife works as a town manager, described as a “vast number of government officials around the country at the local, town, city level.” The cases will also shape how much access citizens have to officials who rely on private accounts to communicate with the public.
“There are First Amendment interests all over the place,” Kagan said.
A lawyer representing two members of a San Diego-area school board said discussions on private social media accounts were akin to conversations officials might have at church or on the campaign trail — places where they generally aren’t constrained by the First Amendment.
“President Trump could have done exactly the same thing from Mar-a-Lago or a campaign rally,” said the lawyer, Hashim Mooppan.
Mooppan’s clients, Michelle O’Connor-Ratcliff and T.J. Zane, set up Facebook and Twitter pages during their 2014 campaigns, then continued using the sites to talk about school issues after winning election and taking their seats. They set up their pages so that their posts were open to comment by members of the public.
Two of their constituents, Christopher and Kimberly Garnier, left frequent comments criticizing the board over racial issues and alleged financial wrongdoing by a top school official. O’Connor-Ratcliff and Zane began hiding or deleting the Garniers’ comments before eventually blocking them.
The Garniers’ lawyer, Pamela Karlan, said a ruling for the school board “would have devastating consequences for the public because they would be denied access to the sites on which their officials are talking to them and asking for their reactions.”
The second case concerns James Freed, who was hired in 2014 to serve as the city manager of Port Huron, Michigan. Freed used his Facebook page to post both family and professional information. His posts in 2020 about the Covid-19 pandemic drew a series of critical comments from Kevin Lindke, whom Freed eventually blocked.
The central question for the Supreme Court is whether the social media activity constitutes “state action,” making it subject to the First Amendment.
Blocking people from otherwise public Facebook pages means they can’t comment on posts but can still view them. Blocking users on X, as Twitter is now known, means they can’t see the account while logged in.
Federal appeals courts reached opposite conclusions in the two cases. The San Francisco-based 9th US Circuit Court of Appeals said the two school board members violated the First Amendment, while the Cincinnati-based 6th Circuit tossed out Lindke’s lawsuit against Freed.
The Biden administration is backing the government officials, characterizing the Facebook and Twitter feeds as “private property.”
“If the defendant denies access to her own personal property, she’s probably acting in her capacity as a private property owner, not as an agent of the state,” Justice Department lawyer Sopan Joshi said.
Several members of the court questioned whether that distinction made sense in the real world. “It seems to me you want to set up strong rules that make nothing state action,” Justice Sonia Sotomayor told a different Justice Department lawyer, Masha Hansford.
Justice Ketanji Brown Jackson suggested government officials seeking to avoid First Amendment scrutiny should include a “clear disclaimer” indicating they were posting on social media in their personal capacity. “How else are we supposed to know?” she asked.
Justice Clarence Thomas said the discussion of private property was missing a key element — the social media companies.
“Looming in the background is the power of Facebook itself to block these accounts,” Thomas said. “What’s curious to me is there’s that elephant in the room and we decline to discuss it in the context of private property.”
Trump faced similar legal issues while president when he blocked critics from following his Twitter account. A federal appeals court ruled against Trump, but his 2020 reelection defeat meant the case lost its practical impact before the Supreme Court could get involved.
The Supreme Court in its 2023-24 term is also reviewing a ruling that would restrict contact with social media companies by the White House and agencies including the Federal Bureau of Investigation. In addition, the court is considering the constitutionality of Republican-backed Florida and Texas laws that would sharply restrict the ability of the largest social media platforms to police political misinformation.
The cases are O’Connor Ratcliff v. Garnier, 22-324, and Lindke v. Freed, 22-611.
--With assistance from Emily Birnbaum.
(Adds additional comments from argument starting in 15th paragraph.)
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