The Wall Street Journal
Some lower courts have divined a First Amendment right to follow politicians on social media. The Supreme Court is considering whether the Constitution bars public officials from blocking constituents on their personal accounts.
Michelle O’Connor-Ratcliff and T.J. Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news. The officials blocked two parents for making “repetitious and nonresponsive comments” on their pages.
The blocked parents sued, arguing the board members abridged their speech rights. The school district didn’t control the social-media accounts or spend money to maintain them, but the parents said the board members’ job-related communications converted the pages into de facto public forums.
The Ninth Circuit Court of Appeals agreed, ruling that members “acted under color of state law” because “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties.”
Several appellate courts have adopted the Ninth Circuit’s “appearance and content” test for determining when public officials are engaging in “state action” when they block constituents on personal accounts. But this test lacks a clear basis in the Constitution or the Supreme Court’s state-action precedents.
Such a broad interpretation of state action would infringe on the First Amendment rights of government officials by restricting how they can communicate with the public. James Freed argues this point in a second case the High Court will hear Tuesday.
Freed created his Facebook account while in college more than 15 years ago. When he was hired as city manager of Port Huron, Mich., in 2014, he opened up his page to the public, including posts about his personal life and public announcements.
When Kevin Lindke, a city resident, posted disparaging remarks on Freed’s personal page, Freed blocked him. Lindke sued Freed for violating his speech rights. The Sixth Circuit Court of Appeals tossed the lawsuit, holding that a public official engages in state action only when performing a legally mandated “duty of his office” or invoking the “authority of his office.”
Though Freed sometimes posted about his job, “he was acting in his personal capacity — and there was no state action,” the Sixth Circuit held. While the Supreme Court has identified three different tests for reviewing state action, the Sixth Circuit noted that none “make clear the distinction between public officials’ governmental and personal activities.”
The High Court now has an opportunity to clarify its standard. In 2014 the justices held that a government worker’s speech isn’t transformed into government speech merely because it “concerns information acquired by virtue of his public employment.” The same is true for their use of social media.
As the Justice Department argues in its amicus brief, the Ninth Circuit’s interpretation could subject much of the “speech of public officials and employees to constitutional restrictions” that would “make those officials and employees less willing to speak in the first place” and “reduce, not enhance, free speech and public discourse.” Americans have many platforms to criticize public officials without invading their personal social-media pages.
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