In a notable recent development as reported by SCOTUSblog, the Supreme Court has conferred that public officials posting about their work-related matters on personal social media accounts are deemed to be representing the government. As such, these officials can be held liable for violating the First Amendment when they block critics; however, this only applies when they exercise their official authority to communicate on behalf of the state.
This decision was in response to a pair of cases in California and Michigan wherein local officials blocked their constituents who repetitively made critical comments on their personal social media accounts. The official capacity of these accounts was upheld by the U.S. Court of Appeals for both the 9th and 6th Circuit but was viewed differently, leading to a unanimous decision by Justice Amy Coney Barrett for further scrutiny.
In one case, O’Connor-Ratcliff v. Garnier, school board members blocked parents from their personal Facebook and Twitter accounts that they used for disseminating information about the board’s activities. The close nexus between the trustees’ use of their social media pages and their official roles was the crux of the judgment in this case.
In contrast, in Lindke v. Freed, it was determined that since James Freed, the Port Huron city manager, managed his Facebook page independently and not as part of his job, he was not operating as a government official when he blocked a city resident. As such, the First Amendment violation was negated by the 6th Circuit in this scenario.
Barrett clarified that a government official’s post on social media could only be considered an act of the government if the official holds the authority to speak on behalf of the government and exercises that power while making the social media post in question. In complex situations, like Freed’s, where the page contains both personal and official posts, such a determination requires careful examination of the post’s content and function. Furthermore, the type of technology used also matters, as blocking someone from a social media page containing both personal and official posts could potentially hinder someone from commenting on official posts. Therefore, public officials should clearly earmark their personal posts on separate accounts to minimize potential liability.
This decision is considered significant as it is one of several expected this term relating to the dynamics between the government and social media. Some of these include challenges to controversial laws in Florida and Texas which aim to regulate large social-media companies, and cases alleging that the federal government violated the First Amendment by pressuring social media companies to remove misleading or false content. The outcomes in these upcoming cases will likely impact how social media is governed in the area of legal and constitutional rights.