The Supreme Court justices sounded divided Tuesday over whether the 1st Amendment forbids public officials who refer to government business on their personal Facebook pages from blocking members of the public who criticize them.
At issue is whether government employees — whether city managers, school board members or even former President Trump — have a free-speech right to refer to government business on their personal social media accounts without giving critics a right to reply.
The justices heard an appeal from two San Diego-area school board members who were sued for violating the free-speech rights of two parents. The board members had blocked Christopher and Kimberly Garnier from their Facebook and Twitter accounts, saying they had posted dozens of repetitive comments to their personal Twitter and Facebook accounts.
Federal courts in California sided with the Garniers and ruled the 1st Amendment barred officials from excluding their critics if the board members used their personal pages for public business.
Three years ago, Trump suffered a similar defeat when federal courts in New York ruled he violated the 1st Amendment by blocking his critics from his Twitter account. The Supreme Court later dismissed his appeal because he was then out of office.
Now the issue is before the court in the case of Michelle O’Connor-Ratcliff, a school member from the Poway Unified School District, and T.J. Zane, a former member who was also sued.
Their case was paired with one from a city manager in Port Huron, Mich., who won a ruling blocking an online critic.
The legal issue before the high court is whether public officials “engage in state action” when they use their personal pages to communicate with the public.
The 9th Circuit Court in San Francisco ruled the school board members took official action and were bound by the 1st Amendment. “They clothed their pages in the authority of their offices and used their pages to communicate about their official duties,” said Judge Marsha Berzon.
The board members appealed and urged the justices to overturn the 9th Circuit’s ruling, which sets the law for public officials throughout California and the Western states.
They argued they were expressing their personal views on social media, and their Facebook or Twitter accounts did not speak for the school district. A ruling in favor of Garnier “will have the unintended consequence of creating less speech if the social-media pages of public officials are overrun with harassment, trolling, and hate speech, which officials will be powerless to filter,” they said.
In the Michigan case, by contrast, the 6th Circuit Court ruled the city manager’s Facebook page was his personal account and was not part of his job or official duties.
The justices did not appear split along the usual ideological lines. Justices Samuel A. Alito Jr. and Elena Kagan disputed the notion that government officials could shield themselves from critics by using a private social media account.
“So that means President Trump’s Twitter account was also personal?,” Kagan asked Hashim Mooppan, a Washington attorney representing the school board members. “He seems to have been doing a lot of government on his Twitter account.”
But Justice Brett M. Kavanaugh said he was wary of the court turning the personal pages of local and state officials into official government accounts and making them subject to 1st Amendment lawsuits. “There are a vast number of government officials around the country at the local town, city level… It’s going to affect a lot of people,” he said.
Usually the 1st Amendment protects the rights of writers or speakers, but in cases such as these, it may give others a right to reply to the speaker.
The pair of cases heard Tuesday present the first of three disputes before the Supreme Court over how the 1st Amendment applies to social media.
The justices will also rule on whether states such as Texas and Florida violate the 1st Amendment if they penalize school media platforms for allegedly discriminating against conservatives. They will also decide whether the Biden administration violated the 1st Amendment by pressing Facebook and other platforms to remove “disinformation” about COVID-19 and vaccines.
