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Supreme Court takes up disputes involving public officials who block critics on social media

Washington — The Supreme Court on Monday agreed to take up a pair of court fights involving public officials who block their critics on social media and whether elected officials can be sued by users who lost the ability to interact with those accounts. 

The issue of public officials blocking followers who criticize them on Facebook and Twitter and whether this crosses a constitutional line was at the center of a lawsuit brought against former President Donald Trump in 2017. A federal appeals court in New York ruled that Trump violated the First Amendment when he blocked critics of his policies on Twitter, and the former president asked the Supreme Court in 2020 to weigh in.

But the high court ordered the case to be thrown out in April 2021, after Trump left office and the case was moot. The former president was also banned from Twitter after the Jan. 6, 2021, assault on the U.S. Capitol. He has since been reinstated, although he has not posted since then. 

While the Supreme Court left unanswered in 2021 the question of whether the First Amendment prohibits public officials from blocking critics, it will now have a chance to clarify how government officials can interact with constituents when it hears the cases involving local officials from Southern California and Michigan who blocked voters from their Facebook and Twitter pages.

The first dispute, from California, involves Michelle O'Connor-Ratcliff and T.J. Zane, members of the Poway Unified School District Board of Trustees who created public Facebook pages before they were elected to the board in late 2014. O'Connor-Ratcliff, also created a public Twitter account before 2017, according to court filings. Zane no longer serves on the board.

Before their elections, O'Connor-Ratcliff and Zane used their social media accounts to share information about their campaigns and political activities and, after they won their races, posted board positions and information related to the district. 

After receiving repeated comments on their Facebook posts and tweets from Christopher and Kimberly Garnier, whose children attend school in the Poway Unified School District, O'Connor-Ratcliff and Zane blocked the two from their social media accounts.

The parents sued, claiming they were deprived of their free speech rights when they were blocked from commenting on the officials' Facebook and Twitter pages, which they argued were public forums.

A federal district court allowed the lawsuit to proceed and, after a two-day trial, found O'Connor-Ratcliff and Zane violated the Garniers' First Amendment rights. The U.S. Court of Appeals for the 9th Circuit affirmed the district court's ruling, finding that the school board members "have acted under the color of state law by using their social media pages as public fora" because they "clothed their pages in the authority of their offices and used their pages to communicate about their official duties."

The second case, from Michigan, involves James Freed, who was selected to become city manager of Port Huron in 2014. Freed used a public Facebook page to communicate with constituents and share information about city programs, policies and development initiatives, as well as post personal messages. During the COVID-19 pandemic, Freed posted information about the city and state's response, as well as public health guidelines and press releases.

In March 2020, Port Huron resident Kevin Lindke commented on Freed's page from three different profiles criticizing the city's response to the pandemic, including on a photo that Freed shared of the mayor ordering takeout from a local restaurant. Lidke commented that Port Huron residents were "suffering," while its leaders were dining at a "pricey" restaurant rather than "talking out to the community," according to court filings.

In response to the criticisms, Freed blocked Lidke's accounts. He also deleted comments or blocked accounts from four other people.

Lidke sued, alleging Freed violated the First Amendment by deleting his comments and blocking his Facebook accounts. A federal district court sided with Freed, finding that his Facebook activity was not state action and immune from First Amendment scrutiny. The U.S. Court of Appeals for the 6th Circuit affirmed and adopted a "duty-or-authority test" for determining whether a public official is engaged in state action.

Under the test, a public official's social media activity is subject to constitutional scrutiny only when the activity was conducted in furtherance of governmental duties or invoked state authority. The 6th Circuit applied its test to Freed's conduct and found he had not engaged in state action when he blocked Lidke's accounts and deleted his comments.

The Supreme Court will hear arguments in the two cases in its next term, which begins in October. A decision is expected by the end of June 2024.

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