This week, the Supreme Court heard oral arguments in two cases about social media and the First Amendment. The cases involve questions surrounding when and whether a public official’s social media activity constitutes state action subject to First Amendment constraints — and if so, whether they can block individuals from their social media pages. In this episode, David Cole of the ACLU and Professor Eugene Volokh of UCLA Law join to break down the arguments in both cases, discuss the claims being made, and how the outcomes of the cases could contribute to further defining the scope of speech rights online. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Samson Mostashari. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Cooper Smith, and Yara Daraiseh.
Participants
David Cole is the national legal director of the ACLU. He has litigated numerous cases before the Supreme Court including the recent case Mahanoy Area School District v. B.L. involving student off-campus speech on social media. He is the author or editor of 10 books, including most recently “Engines of Liberty: How Citizen Movements Succeed.”
Eugene Volokh is Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law, where he teaches First Amendment law and a First Amendment amicus brief clinic. Volokh is the author of the textbooks The First Amendment and Related Statutes (2016), and Academic Legal Writing (2013), as well as nearly 100 law review articles. He is the founder and coauthor of The Volokh Conspiracy, a leading legal blog.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution.
Additional Resources:
- Lindke v. Freed, Oral Argument (C-SPAN)
- O'Connor-Ratcliff v. Garnier,Oral Argument (C-SPAN)
- Eugene Volokh, When Is Government Official's Blocking Commenter from Social Media Page "State Action"?,Volokh Conspiracy (June 2022)
- David Cole Brief of the ACLU et al in support of respondents, O’Connor-Ratcliff v. Garnier
- David Cole / Brief of ACLU et al in support of petitioner,Lindke v. Freed
Excerpt from interview: On social media, government speech, and the difficulty of determining when a government official is speaking as a private actor or as a government actor.
Eugene Volokh: So, I think we can come up with a lot of scenarios where government officials are indeed acting in their private capacity whether because it's during a reelection campaign or because they're engaging in religious worship or religious activity or maybe a combination of both. Maybe they show up at their place of worship and talk to people about their day jobs.
So I think we can just say, "Well, the person has a government job as a government official." Maybe even a government employee, we're talking about a school teacher. That would be a lot of people. So, we presume everything they do is government action. Or even most things they do is government action. It's not.
We are on the job 40 hours a week. There are 168 hours in every week, maybe 120 when we're awake. Most of the time, we're not on the clock. And in particular, when somebody does post from home, off duty hours, without using government staff, I don't think there's anything that odd about saying that may very well be private action even if, as many of us do off the job, talk about what we do on the job and answer questions from friends and acquaintances and others about what we do on the job.
David Cole: Yeah. So if I could just clarify, I don't think anybody thinks that the government official who goes to church is acting in his official capacity when he's at church and talking to his fellow parishioners. And so, under no test would that be state action. The question is whether, when an official appears to be actually doing his job but happens to be doing it on a personal page but has not made clear that he is acting in his private capacity.
So, these cases would have, I think, come out very differently if the officials had said on their pages, "I am acting in my private capacity and I'm not doing my job here. I am not speaking for the government. I am not speaking as the city manager. I am not speaking as a school board manager." Fine, then that's private speech and you can do what you want.
But that ... They said ... They did exactly the opposite. They said, "Here's my page. I am the city manager. I am the school board. If you have further questions, here's the email to the city manager, official email, work email, to the school board official email, not to my private email." And so in those situations, it seems to me, it's fair to hold them accountable. And I think the Trump example is a good one.
I mean, Eugene is right that the Trump case was easy in some sense because he used government resources to write his tweets. But suppose he hadn't. Suppose he hadn't. I still think someone who is the president of the United States who is clearly using his real Donald Trump Twitter page to issue orders to announce government actions and the like should be held accountable because he is holding himself out as a government official using his authority to do his job.
And I think the reason that these cases are hard is because part of, at least for some government officials, and not all but certainly for the President, certainly for the city manager, certainly for school board members, not maybe for government lawyers or something. Part of your job is actually communicating the policies of the government to the people. That is actually part of your job. So that's why it's so hard to distinguish between when they are doing their job and exercising their authority and therefore should be held accountable and when they are not, when they're acting in their personal capacity.
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