In a closely watched case involving school board members and other public officials who block critical comments and users from their personal social media pages, the U.S. Supreme Court on Friday ruled that officials may be sued in some circumstances but set a test that will shield many posts and actions by the officials from First Amendment scrutiny.
The justices ruled unanimously that officials would be engaged in 鈥渟tate action鈥� only if they have the authority to speak on the government鈥檚 behalf and are exercising that authority in specific posts on their personal social media pages.
The question of whether the officials were engaged in state action is central to whether they may block certain comments and users from their own social media pages.
鈥淭he question is difficult, especially in a case involving a state or local official who routinely interacts with the public,鈥� Justice Amy Coney Barrett wrote for the court in , one of two companion cases the court heard involving the same issue. 鈥淪uch officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job.鈥�
But, 鈥渨hile public officials can act on behalf of the state, they are also private citizens with their own constitutional rights.鈥�
Barrett said many of the nation鈥檚 20 million state and local government officials, including governors, mayors, and teachers, use social media for personal or official communication, or both, 鈥渁nd the line between the two is often blurred.鈥�
She outlined a two-part test for when officials鈥� social media posts would meet the definition of official communication that constituted state action (and thus prompt an analysis into whether an official blocking a critic鈥檚 posts violated that user鈥檚 First Amendment free speech rights).
First, the official must have 鈥渁ctual authority鈥� to speak on behalf of the state.
鈥淭he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the state entrusted the official to do,鈥� Barrett said.
The second prong of the test is that the official must purport to use that authority in a particular social media post.
鈥淚f the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice,鈥� Barrett said.
She raised a hypothetical 鈥渇rom the offline world,鈥� in which a school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools.
鈥淭he next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions,鈥� Barrett said. 鈥淭he former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context鈥攁n official meeting versus a private event鈥攄iffers.鈥�
Cases before the court involved school board members and a city manager
The cases the court considered were 翱鈥机辞苍苍辞谤-搁补迟肠濒颈蹿蹿 v. Garnier, involving school board members, and Lindke v. Freed, involving a city manager.
The school board members鈥� case stems from 2014, when Michelle 翱鈥机辞苍苍辞谤-搁补迟肠濒颈蹿蹿 and T.J. Zane were first elected to the board of the 35,000-student Poway Unified School District, north of San Diego. Both had created public Facebook accounts during their campaigns, which they converted into platforms for information about their board service and the school district. 翱鈥机辞苍苍辞谤-搁补迟肠濒颈蹿蹿 did the same with her account on X, formerly known as Twitter.
On those accounts, 翱鈥机辞苍苍辞谤-搁补迟肠濒颈蹿蹿 and Zane identified themselves as board members and posted frequently about Poway district matters, such as upcoming board meetings, status reports about an interim superintendent search, and video clips of student musical performances. They both at times used the word 鈥渙fficial鈥� to describe their sites, though the social media pages were not in any way operated by the school district.
Both board members blocked Christopher and Kimberly Garnier, parents who had concerns about district affairs and had posted numerous repetitive comments on the members鈥� social media pages. The parents sued under the First Amendment, and the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that the members鈥� social media pages were held out as official communication and were thus state action subject to free-speech scrutiny. That court went on to rule that the board members had violated the parents鈥� First Amendment rights by blocking them.
The Lindke case involved the city manager of Port Huron, Mich., who used his longtime personal Facebook account to discuss city business, including in 2020 about the city鈥檚 response to the COVID-19 pandemic. The city manager blocked a frequent critic who had posted critical comments about the city鈥檚 pandemic policies. Lower courts in that case ruled that the city manager鈥檚 blocking of critics was not state action, and thus he couldn鈥檛 be held liable for blocking his critic.
Barrett wrote the opinion for the court that lays out the new test in the Lindke case. The court issued an unsigned opinion in the school board members鈥� case, though Barrett summarized both from the bench, including that each case was being sent back to lower courts to apply the new test.
A brief discussion of the implications of blocking a critic from a page altogether
Embedded in the court鈥檚 test, Barrett said in the Lindke opinion, is that the appearance of a public official鈥檚 personal social media page will not be the determining factor for state action, even when such pages use words like 鈥渙fficial.鈥�
鈥淎n act is not attributable to a state unless it is traceable to the state鈥檚 power or authority,鈥� Barrett said. 鈥淧rivate action鈥攏o matter how 鈥榦fficial鈥� it looks鈥攍acks the necessary lineage.鈥�
She said some social media pages are clearly operated by the government, such as a City of Port Huron Facebook page, or a page passed down from one holder of a specific office to the next. But some are ambiguous about whether they are personal or official.
鈥淐ategorizing posts that appear on an ambiguous page 鈥� is a fact-specific undertaking in which the post鈥檚 content and function are the most important considerations,鈥� Barrett said. 鈥淗ard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it.鈥�
Barrett briefly delved into the issues around an official blocking a critic from a social media page. She said 鈥渢he bluntness of Facebook鈥檚 blocking tool,鈥� for example, highlights the potential legal hazards of a 鈥渕ixed-use鈥� social-media account.
鈥淚f page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts,鈥� Barrett said. 鈥淎 public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.鈥�
The American Civil Liberties Union, which had filed friend-of-the-court briefs supporting the critics whose comments were blocked in both cases, said the decision 鈥渦nderscores that the First Amendment restricts how the government can shape speech that takes place on social media.鈥�
鈥淚t gives everyday Americans a way to hold officials constitutionally accountable when they censor social media content, restrict access to it, or improperly elevate certain viewpoints over others,鈥� said Evelyn Danforth-Scott, an ACLU staff lawyer specializing in Supreme Court litigation. 鈥淎t the same time, it protects public officeholders鈥� own free speech rights by giving them guidance on how to make clear when they are speaking as private individuals.鈥�
Thomas Berry, a constitutional research fellow with the libertarian Cato Institute in Washington, which filed friend-of-the-court briefs in each case (supporting neither party), said the decision 鈥渟trikes a reasonable balance between the general public鈥檚 right to access official state communications and the rights of government officials to exercise their own private speech.鈥�
