James Freed, appointed city manager of Port Huron, Michigan, in 2014, and Michelle O’Connor-Ratcliff and T.J. Zane, elected trustees of the Poway Unified School District in San Diego, California, undoubtedly were strangers until the U.S. Supreme Court entered their lives.
On Tuesday, the justices will hear back to back arguments involving the three public officials, in separate cases raising the same legal issue but with different facts. The outcomes are likely to play a significant role in what may be a huge term for social media companies and their consumers.
In its simplest form, the question before the justices is whether public officials violate the First Amendment when they block individuals from their personal social media pages.
The Questions Before the Court
As with most of our constitutional rights, the First Amendment generally protects us from government action. To hold public officials accountable for violating the First Amendment, they must have engaged in “state action,” that is, exercised power by virtue of their positions or acted “under color of law.”
After he was appointed Port Huron’s city manager, Freed converted his private Facebook profile to a public page which reflected his new role and identified his official position along with some personal family information. He posted information about family activities as well as information related to his work as city manager.
Freed’s posts about COVID-19 and the pandemic did not sit well with Kevin Lindke who criticized them in the comments section of Freed’s posts. Freed, however, deleted Lindke’s comments and eventually blocked him from future comments.
Christopher and Kimberly Garnier had a similar experience with the two school district trustees, Michelle O’Connor-Ratcliff and T.J. Zane.
During and after their elections to the school board, the two trustees created Facebook pages used, first to promote their campaigns, and later, to share their work as board members. They each were self-described as a “Government Official,” and identified their positions with the school district. Only they could post on their pages and their posts generally covered school board and district information. Others could comment on their posts or use non-verbal symbols, such as emoji, to respond.
The Garniers, who had children in the district, were active in district issues and regularly attended board meetings. They also had been involved in lawsuits against the district. In 2015, the Garniers began posting lengthy comments on the two trustees’ Facebook pages. The trustees initially deleted or hid their comments, but subsequently blocked the Garniers.
The State Action Doctrine in Play
Lindke sued Freed and the Garniers sued the two trustees under 42 U.S.C. § 1983, which authorizes a plaintiff to sue a person acting “under color of ” law for violations of the Constitution or federal law. This is commonly known as the “state action” doctrine.
In Lindke’s suit, the U.S. Court of Appeals for the Sixth Circuit ruled that Freed did not violate Lindke’s First Amendment rights because he was not performing an official duty and thus was not engaging in state action when he deleted and blocked Lindke’s comments. The court said a public official engages in state action only when the official performs a legally mandated “duty of his office” or invokes the “authority of his office.”
In the Supreme Court, Lindke’s counsel argues that the lower court was misguided in applying a rigid test to determine state action. “The government’s influence is vast and often subtle; a public official can act under color of law, affecting private interests in ways that matter under the Constitution, even when not executing a legal duty or drawing on the formal powers of office.” The lower court, instead, should have considered a range of circumstances that could point to state action.
Freed’s attorney counters that the lower court’s “duty or authority” test for evaluating when social media accounts constitute state action is a “clearly defined, yet flexible, standard that comports with this [Supreme] Court’s longstanding precedent; provides guidance to government employees; and avoids chilling government employees’ speech.”
In the Garniers’ suit, the U.S. Court of Appeals for the Ninth Circuit ruled that the two trustees did violate the First Amendment. The court said that there was state action because the trustees “clothed their pages in the authority of their offices and used their pages to communicate about their official duties.”
In the Supreme Court, the two trustees’ counsel contends that “it is undisputed that the accounts were created and maintained by [the trustees] without any direction, funding, support, or other involvement by the school district.” They actually operated their accounts in their personal, not their official, capacity.
The lower court’s focus on the content and appearance of the pages, the attorney argues, is a state action theory with no basis in logic or law. “Rather than invoking the First Amendment to protect speech from governmental abridgment, the court itself abridged Petitioners’ speech,” he contends. “The court barred them ‘from exercising editorial discretion over speech and speakers on their’ pages. Also, by treating their pages as if operated ‘pursuant to their official duties,’ the court implied that the State itself can exercise plenary control.”
The Garniers, of course, disagree. The trustees were government officials, their counsel states. When they maintained social media pages to inform constituents about district and school board matters and to solicit input about board decisions and other related information, they were doing their jobs, argues the attorney. “Their choice of twenty- first century social media cannot change the fact that they were engaged in fulfilling a responsibility that has been part of an elected official’s job since at least 1774 when Edmund Burke explained that ‘a representative ought always to rejoice to hear’ the public’s views,” he adds. “Whatever the tools they used, the Trustees remained state actors.”
A number of friend-of-the-court briefs have been filed by civil liberties groups, states, social media groups and others. The Biden Administration has filed briefs supporting the public officials.
In its briefs, the administration contends that the Facebook pages were the private property of Freed and the trustees. “When private property—that is, property over which the government lacks ownership or control—is at issue, however, a denial of access will rarely be found to be state action,” the briefs state, “unless the official is invoking official powers or exercising a traditional and exclusive public function.” Neither Freed nor the trustees invoked official powers or exercised an exclusive public function, the administration contends.
The Supreme Court is no stranger to the state action doctrine, but it has never examined or applied it in the context of social media. The closest the justices came was in 2021 when they considered a petition from former President Donald Trump who was found to have violated the First Amendment when he blocked the Knight First Amendment Institute and several critics from his then-Twitter (now “X”) account. The petition was dismissed because Trump was no longer president.
The justices’ ruling in the two cases argued on October 31 may have a significant impact on how public officials communicate with their constituents. And whatever the justices say about the state action doctrine and how it applies will carry over to other legal contexts.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
