The Supreme Court’s next target: social media

In late April, the U.S. Supreme Court agreed to hear two cases affecting citizens’ ability to sue government officials who block them on social media. When the court tackles O’Connor-Ratcliff v. Garnier and Lindke v. Freed (likely this fall), it should embrace a rule that enhances, not constrains, the First Amendment right to engage with and criticize officeholders on Twitter and Facebook.

This would breathe life into the court’s 1964 acknowledgement (long before the social media era) of the vital role played by “the citizen-critic of government. It is as much his duty to criticize as it is the official’s duty to administer.”

The two cases involve a key First Amendment question: When public officials block you from their personal social media accounts because you’ve posted critical comments about them or their policies, does that violate your constitutional rights of free speech and petition?

But before getting there, courts must decide the threshold issue of whether the officials are using their accounts more in a private capacity — say, posting family photos or favorite recipes — or more as public forums for job-related matters like pronouncing policies and communicating with constituents.

Resolving this foundational state-action question is critical; that’s because, as the Supreme Court recently reiterated, the First Amendment’s “Free Speech Clause prohibits only governmental abridgment of speech,” not “private abridgment.”

No First Amendment claim thus arises when officials use social media accounts like private citizens, rather than as governmental actors, because the amendment only protects against government censorship. In short: no state action, no First Amendment case.

Troublingly, lower courts differ on how to answer the state-action question in social-media, personal-account cases. The U.S. Court of Appeals for the Ninth Circuit in O’Connor-Ratcliff and the Sixth Circuit in Lindke took contrasting approaches that the high court will now analyze.

When it resolves the discord, the court should adopt the holistic, state-action tack taken by most circuits, including the Ninth Circuit in O’Connor-Ratcliff, which evaluates “a broad range of factors,” including content and appearance. State action exists under this approach if there is “close nexus” between how public officials use “their social media pages and their official positions.”

Conversely, the Supreme Court should reject the Sixth Circuit’s method in Lindke, because it makes it too difficult for blocked citizens to prove state action. It narrowly finds state action only when a law designates running a social media account “as one of the actual or apparent duties” (an “official responsibility”) of a public official or when an account “belong[s] to an office, rather than an individual officeholder.”

Adopting the Ninth Circuit’s close-nexus approach would make it easier, although not inevitable, for citizens to prove state action. This would comport with the Supreme Court’s recognition in 2017 that social media sites now are among “the most important places […] for the exchange of views” and that “on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.”

Simply put, the realities of today’s communication environment necessitate affording a citizen’s broad First Amendment rights, unless officials use their social media accounts in a purely private-citizen manner that is devoid of job-related content and trappings.

How did we get here? Courts nationwide — most notably the U.S. Court of Appeals for the Second Circuit in a 2019 ruling against then-President Donald Trump — have concluded that public officials may violate the First Amendment when they block critics on Twitter and Facebook.

The Second Circuit explained in Knight First Amendment Institute at Columbia University v. Trump that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.” In short, blocking only critics (not supporters) from participating in a virtual public forum constitutes unconstitutional viewpoint discrimination.

The Second Circuit determined Trump’s use while president of his personal @realDonaldTrump Twitter account constituted state action for several reasons. Significantly, the Second Circuit’s state-action approach is “consistent with” the Ninth Circuit’s close-nexus methodology in the O’Connor-Ratcliff case now facing the Supreme Court.

The Second Circuit examined how: (1) Trump used his personal account almost daily to announce, describe and defend his policies and agenda; (2) the account’s “header photographs” depicted Trump “engaged in the performance of his official duties such as signing executive orders”; and (3) the account was “one of the White House’s main vehicles for conducting official business,” including nominating and firing people. The Second Circuit concluded that Trump “consistently used the account as an important tool of governance and executive outreach.”

But the Second Circuit also made it clear it was not addressing “whether an elected official violates the Constitution by excluding persons from a wholly private social media account.” And the Supreme Court punted on the state-action question in 2021 when it declared the Trump case moot after he left the Oval Office.

The court now will finally confront this question. It should adopt the close-nexus methodology used in both O’Connor-Ratcliff v. Garnier and Knight First Amendment Institute v. Trump. This will allow blocked citizens to more readily prove state action and, in turn, robustly exercise their First Amendment right to criticize government officials.

Clay Calvert, J.D., Ph.D., is professor emeritus at the University of Florida (UF). He held a joint appointment as a professor of law at the Fredric G. Levin College of Law and a Brechner Eminent Scholar in Mass Communication in the College of Journalism and Communications. Specializing in First Amendment and media law, Calvert has published more than 150 law journal articles on topics affecting free expression, and he is lead author of  “Mass Media Law” (22nd ed. 2023, McGraw Hill).