SCOTUS: Garnier v. O'Connor-Ratcliff and Lindke v. Freed - comment censorship on government social media

Issue before or regarding the Supreme Court of The United States

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When a government body (e.g., a school board or a city council) sets up a social media account, the public comments on that account are viewed as a "limited public forum," in which the government may not discriminate based on viewpoint. (See, e.g., Davison v. Randall (4th Cir. 2019).) The government therefore can't selectively remove comments on that page, or block commenters from posting to it, based on the comments' or commenters' views.

Individual social media users, on the other hand, are free to delete comments or block commenters (to the extent the social media software allows it). That includes government officials in their private capacities, whether they're acting as ordinary citizens or as candidates.

But how can courts tell politicians' official pages from their private ones? This question first hit the national news as to President Trump's blocking of commenters on the @RealDonaldTrump page, but that matter became moot when Trump left office. This morning, the Supreme Court agreed to hear two cases that deal with this issue, Garnier v. O'Connor-Ratcliff (coming from the Ninth Circuit) and Lindke v. Freed (coming from the Sixth). ...


WASHINGTON, Oct 31 (Reuters) - The U.S. Supreme Court is set on Tuesday to explore free speech rights in the digital age in cases from California and Michigan involving whether public officials may legally block others on social media, a function often used on these platforms to stifle critics.

Lower courts reached different conclusions in the two cases, reflecting the legal uncertainty over whether such social media activity is bound by the U.S. Constitution's First Amendment limits on the government's ability to restrict speech.

... the 6th Circuit ruled that Freed's blocking of Lindke did not qualify as state action. "Social-media activity may be state action when it (1) is part of an officeholder's 'actual or apparent dut[ies],' or (2) couldn't happen in the same way 'without the authority of [the] office,'" the appeals court said, quoting Waters v. City of Morristown, a 2001 6th Circuit decision. Because "Freed maintained his Facebook page in his personal capacity," the court said, his actions did not meet that test.

During oral arguments in these two cases on Tuesday, the justices grappled with the implications of that test and possible alternatives. In O'Connor-Ratcliff v. Garnier, Hashim Mooppan, the lawyer representing the school board members, argued that a government official is free to block critics who offend him unless he explicitly says, "This is a page I'm running in my official capacity." That claim prompted Justice Elena Kagan to note the elephant in the room. The implication, Kagan said, was that "President Trump's Twitter account was also personal."

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