When officeholders use their social media accounts to post about their official government duties, are they acting as private citizens or government officials?
On March 15, the U.S. Supreme Court (SCOTUS) issued an opinion in two cases related to that question. We wrote about both, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, last year.
What the cases were about: O’Connor-Ratcliff v. Garnier concerned two elected school board members, while Lindke v. Freed was about an appointed city manager. In both cases, officeholders blocked users who left repetitive and critical comments on social media accounts identifying them as government officials. The officeholders created the accounts before they assumed office.
SCOTUS heard arguments in both cases on Oct. 31, 2023, because lower courts came to different conclusions about whether the officeholders acted as government or private actors when they blocked users. According to Congressional Research Service Legislative Attorney Valerie Brannon, “Government retaliation against constituents because of the content or viewpoint of their speech can violate the First Amendment. However, the First Amendment only applies to government action; private action usually does not trigger First Amendment protections. This limitation is known as the ‘state action’ doctrine.”
How SCOTUS ruled: The Court issued one ruling for both cases. Justice Amy Coney Barrett wrote for a unanimous court in Lindke v. Freed, and sent it and O’Connor-Ratcliff v. Garnier back to lower courts for judges to revisit in light of SCOTUS’ new guidance.
The Court issued a two-part test for evaluating the public or private status of a public official’s social media account. Barrett wrote: “When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” In circumstances that satisfy both conditions, a government official could be sued for blocking or deleting comment on a social media account.
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