WASHINGTON — The Supreme Court heard two sets of oral arguments Tuesday in cases that involve whether public officials’ personal social media accounts are considered public forums.
One case, O’Connor-Ratcliff vs. Garnier, involved Michelle O’Connor-Ratcliff and T.J. Zane, two school board members in a district in San Diego who used their personal Facebook and Twitter accounts to communicate with the public, including seeking feedback from constituents.
O’Connor-Ratcliff and Zane blocked Christopher and Kimberly Garnier, two parents who had repeatedly posted criticisms of the board members on their personal Facebook and Twitter accounts.
The second case, Lindke vs. Freed, arose after Kevin Lindke, a Michigan resident and local social media figure, posted complaints and comments on a Facebook page of Port Huron City Manager James Freed created when he was in college, but continued to use once he was in government.
Freed deleted Lindke’s comments and eventually blocked him.
Lindke sued Freed for violating his First Amendment rights, claiming that losing access to Freed’s Facebook page meant being restricted from a public forum.
Opposite opinions
Lower courts came to conflicting rulings in the two cases. Observers anticipate that the Supreme Court will issue one combined ruling that will define terms of public officials’ use of social media.
In the San Diego case, the Garniers sued the board members, saying that blocking their access to the Facebook and Twitter accounts constituted “state action” that violated their First Amendment rights.
The district court ruled in favor of the Garniers, and the U.S. Appeals Court for the 9th Circuit backed the ruling.
Hashim M. Mooppan, the lawyer for the school board members, argued that individuals in public office are still private citizens. He said because the local government authority did not control or facilitate the personal social media pages of the school board members, blocking the Garniers did not violate their First Amendment rights.
Justice Sonia Sotomayor presented Mooppan a hypothetical situation in which an official site may be down, prompting officials to use their personal accounts to send out necessary information — essentially converting the official’s personal account into one acting in official capacity.
“In my experience, there’s a lot of customary laws, customary actions, that are not defined by law, but are expected of government officials,” Sotomayor said.
Private citizens
Mooppan’s response was that, while the school board members were government officials, they could also be private citizens who act in a personal capacity.
Pamela S. Karlan, the lawyer for the Garniers, based her argument on O’Connor-Ratcliff performing actions that a normal citizen would not have been able to do, including posting instances when the official visited classrooms or spoke to school administrators.
She noted that O’Connor-Ratcliff used the words “we” and “our” in her social media posts but switched to “I” on her campaign website, thus arguing that the social media accounts were not campaign accounts.
Justice Amy Coney Barrett inquired about how social media is being used in general. For instance, a public official can have duties to perform but doesn’t have an obligation to communicate those actions on any particular platform or forum.
Karlan countered, “Receiving feedback from constituents is an important part of their duty as trustees.” She said that social media platforms maintained as an ongoing site for the exchange of information is part of the public officials’ actions.
Mooppan disagreed, arguing that they didn’t have a duty to use any platform like Facebook, even if they are allowed to use it.
Disclaimers used
Sometimes, social media users put so-called disclaimers on their accounts, like for instance: a comment that “opinions are my own.” Both sides debated what effect forcing a public official to have a disclaimer could have.
“Where in the Constitution are they obligated to put up disclaimers?” asked Mooppan, who argued that putting up a disclaimer was, in itself, an imposition on free speech.
Kristin Lindgren-Bruzzone, deputy general counsel for California School Boards Association, which submitted a friend-of-the-court brief supporting the board members, told Medill News Service that each school board member did not have the capacity to act individually because in most instances, a majority needed to vote to take action on any issues.
“Part of our argument is that they can’t be engaging in official state action on their individual, private Facebook pages that aren’t sponsored by the district because they cannot act individually in any way,” she said.
In the other case, Lindke initially lost an appeal after the U.S. Appeals Court for the 6th Circuit held that Freed did not violate any rights because he did not act in his government duties by blocking Lindke.
Lindke’s counsel, Allon Kedem, however, said in his opening remarks on Tuesday that social media platforms serve as the “new town square,” where public officials share what they’re doing to engage in dialogue with their constituents.
He said that while Freed’s Facebook page was initially a personal account, it became an extension of his city job during the COVID-19 pandemic.
“Once you’ve established a channel for communicating with constituents about your job, I don’t think also posting sometimes about your family is going to undo that,” Kedem said.
Throughout the hearing, justices and lawyers pointed out that Freed’s Facebook page, which was deleted after Lindke’s initial lawsuit, contained photos of dogs, babies and other personal moments.
Reposted information
Freed’s counsel, Victoria Ferres, argued that Freed was not using his Facebook page as a public forum. Instead, he mostly reposted information “like anyone else during COVID.”
“A public employee should be able to speak about their job as long as they’re not exercising their official job duties on the page,” Ferres said.
Conservative Justice Brett Kavanaugh seemed to agree with Ferres.
“A lot of elected officials I’ve been around love going to the grocery store and talking to people after church, and that’s where they learn things to help them do their job better and they’re thinking in their mind, ‘Yeah I’m going to the church. I’m going to the grocery, but I’m going to pick up things,'” he said.
In an interview with Medill News Service after the oral arguments, Lindke said he hoped his case would define the rights of public officials and private citizens in certain forums.
“It doesn’t matter which way the justices decide, we’re just going to get that framework in place that I think it’s going to benefit everybody, and it’s going to help us all out,” he said.
Katie Fallow, senior counsel at the Knight First Amendment Institute at Columbia University in New York, said the case has “important real-world ramifications.” The institute filed a friend-of-the-court brief in support of Lindke.
“If public officials are just allowed to block anyone who disagrees with them, they essentially will convert the comment section of their social media account(s) into a one way cheering section for the government, and that’s antithetical to the First Amendment,” Fallow said.
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