Tomorrow, the Supreme Court explores a lively constitutional question about public officials’ right to block critics or unwanted contacts from access to those officials’ social media pages. The outcome of the case could have major implications for how the Internet’s content is controlled.
Tuesday hearings: O’Connor-Ratcliff v. Garnier, starting at 10 a.m., followed by Lindke v. Freed, starting as soon as the first hearing ends. Each is scheduled for one hour.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears lower on the page. The audio also will be available, under the title of each case, on C-Span TV at this link: cspan.org/supremecourt
Background on both cases: The Internet has been with us as a dominant means of communication only since 1983, and that is a fairly short time for the law governing this creative enterprise to develop fully. The Supreme Court’s first major ruling on constitutional issues affecting digital communication did not come until 1997, a unanimous ruling striking down under First Amendment free-speech principles a federal law to ban obscenity from the Web.
Since then, Congress and state legislatures have been pondering how – and whether — to regulate such an open forum, available to anyone with a computer or a smartphone and a forum run mainly by private companies and not government. Fundamental disagreements over how free the Web should be have thwarted attempts to widen the government’s oversight of social media.
Two and a half years ago, it appeared that the Supreme Court might make a historic move in this field, in a dispute over then-President Donald Trump’s use of his Twitter page. Lower courts had ruled that Trump had violated the First Amendment rights of groups when he blocked their access to his site.
However, the case came to an end without a decision by the Court, after President Biden came into office and after Twitter had banned Trump from the site for abusing the platform’s rules. But the most extensive discussion yet by anyone on the Court of Internet controls came in an opinion that Justice Clarence Thomas issued when that case fell through. He wrote only for himself, but it provided a beginning exploration of the topic.
In 12 wide-ranging pages of constitutional musing, Thomas probed what type of media the Web is, and what that could mean for private or public controls on digital content. He came to no firm conclusions. However, he did argue that the issues should be examined by the Court at some point. He wrote: “Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”
That basic inquiry has returned, and the Court has agreed to rule on it. It has chosen two cases involving local public officials in California and Michigan to test public access to those officials’ web pages as a First Amendment question.
The Constitution’s First Amendment, of course, puts restraints only on government action involving expression or speech. It is not always clear, however, when a government official is acting within the line of duty, or in a private or personal capacity. That is at the heart of Tuesday’s hearings.
Facts of tomorrow’s first case: Michelle O’Connor-Ratcliffe and T.J. Zane are elected members of the Poway, Calif., public school board, and each of them has personal pages on Facebook and Twitter. They use those accounts for personal messages, but also use them frequently to discuss public policy issues and school board actions.
Christopher and Kimberly Garnier, parents of children who go to the Poway schools, posted many comments or “tweets” on those pages – often, those were repetitive and annoying to the board members, although none were profane or violent. Using controls on their sites that Facebook and Twitter allow account-holders to use, the board members shut out the Garnier couple from the officials’ pages on those platforms. Being blocked from a Facebook account leaves the site holders’ entries readable but bars any comments from others seeking access, while a block from Twitter eliminates any access.
The parents sued the board members in federal court, arguing that the online pages were being used as official public forums, run by them as government officials and thus open to others for comments on public issues.
The Garniers won their case in lower courts. A federal appeals court ruled that the pages were used by the board members as government communication sites, telling the community what the board was doing on school policy and seeking input from the community on the performance of their duties.
It did not matter, the appeals court said, that the platforms were not financed by the school system and were not used under government permission; the couples’ free-speech rights had been violated.
The Garniers were not awarded any damages for the board members’ actions, and some secondary issues remain to be decided later. The appeals court did decide enough to give the school board members the opportunity to file an appeal to the Supreme Court and the Justices agreed to rule. The Biden Administration’s Justice Department has entered the case to support the board members’ claim that their online pages were not public forums, so blocking of the parents’ comments was not done officially and no First Amendment violation had occurred.
Facts of tomorrow’s second case: James B. Freed is the city manager of Port Huron, Mich. In March 2020, Freed began putting local government information on his personal Facebook page. Those posts included discussion of how the city government was dealing with the Covid-19 health crisis and how Freed was trying to reduce the city’s payroll and freeze new hiring during the health crisis.
Soon, the page began drawing criticism from a local resident, Kevin Lindke. His posts accused city officials of misconduct, including dining out at “pricey” local restaurants while the city’s residents were suffering from the economic effects of the pandemic. Port Huron, one of Lindke’s posts said, “deserves better.”
Four other residents put similar comments on Freed’s Facebook page. In response, he blocked access and deleted the posts those five residents had put on his page.
Lindke sued Freed in federal court, and lost. He based the lawsuit on an 1871 federal civil rights law that creates a right to sue any person who, acting “under color of state law,” deprives an individual or group of a right guaranteed by the Constitution or federal law. The law thus applies only to actions that are taken by someone acting in an official capacity.
A federal appeals court ruled that Lindke’s lawsuit failed because the operation of Freed’s Facebook page was not a form of “state action” and thus his actions did not run afoul of the First Amendment.
The appeals court based its ruling on what it called a “duty-or-authority test.” A public official’s activity on social media, the court said, will be treated as official in nature – and thus subject to challenge under the First Amendment – only where the activity was carried out to further government duties, or where it relied on state authority to act. James Freed, it said, “didn’t transform his personal Facebook page into official action by posting about his job. Instead, his page remains personal and can’t give rise to liability” under the 1871 law.
Lindke appealed the case to the Supreme Court. His claim is opposed by the Biden Administration’s Justice Department, which argued that the city does not own or control that page and that Freed did not “exercise any power of his office” in operating the site.
The questions at issue in both cases: When does a public official who has a social media page and uses it to discuss official policy or actions act unconstitutionally by blocking others from the page? Is that unconstitutional only if the government owns the site or controls its use?
Significance: These cases have the potential to provide some clarity in two broad areas of communication in the Digital Age: (1) the constitutional nature of the Web (is it public or private, or some of each, and what factors define its identity?), and (2) the question of control of the content that is posted on social media platforms (who decides content questions, and what legal and societal factors shape those choices?) Answers to questions like those involve both technology and law.
Supreme Court Justices are no better equipped than most intelligent Americans in understanding how the Web actually works. But they are the final deciders of how the Constitution applies to that technology, and thus have the power to make those judgments.
Larger issues lurk behind the specific dispute in these cases, which at least on first glance focuses only on the constitutional definition of “state action” in the realm of social media platforms.
When the Web first became widely available to nearly anyone, the marvel of it all tended to divert attention away from underlying uncertainties about issues such as these: How is censorship to be avoided? How can online discourse be kept free of misinformation and manipulation? Will self-regulation by the industry be workable, or must the government assume some kind of oversight, perhaps even of control? When government itself enters the online discourse, how can it be held accountable for what it posts? In a democracy, is communication between officials and the people they represent a two-way not a one-way proposition?
The cases being heard by the Court on Tuesday may be only the beginning of this broad exploration, but the hearings may provide some strong hints of the Justices’ leaning.
On Wednesday, the Court will hear a single case, testing whether the creator of a T-shirt that mocks Donald Trump is constitutionally entitled to use a trademark in selling the garment.
