O’Connor-Ratcliff v. Garnier
The U.S. Supreme Court on Tuesday wrestled with a question of increasing urgency: When public officials block critics on social media, are they acting in their official roles and therefore liable for violating the First Amendment?
Arguments stemmed from two cases with differing outcomes. In O’Connor-Ratcliff v. Garnier, two California school board members blocked a couple – the Garniers – who regularly posted critical messages on the board members’ Facebook pages. The Ninth Circuit ruled that blocking the couple constituted state action due to the nature and character of the board members’ accounts, which frequently featured posts about official government business.
In a separate, joined case (Lindke v. Freed), a Michigan city manager blocked a constituent – Lindke – following critical comments Lindke made regarding the city’s COVID-19 policies. There, the Sixth Circuit came to the opposite conclusion, finding that the city manager’s account was predominately personal in nature. That court held that a public official’s social media activity only constitutes state action when they are engaged in official duties.
The Court’s questioning in Tuesday’s hearing offered no clear delineation between conservative and liberal justices. All nine, however, recognized the difficulty in determining when an official is acting in a public versus private capacity. “This is all a question of how broadly do we define authority or duty,” Justice Amy Coney Barrett said.
The Biden Administration, through an amicus brief, sided with the public officials in both cases, arguing that officials have a right to block people from their social media accounts because those accounts constitute a type of private property. Chief Justice John Roberts and Justice Samuel Alito questioned the government’s position from different angles.
“It doesn’t cost anything to open a Facebook page,” said Alito. “To make so much turn on who owns the Facebook page seems quite artificial.”
Justice Roberts added, “In what sense is this really private property?”
Lawyers representing the parties offered their own varying tests for determining what constitutes public versus private action.
Hashim Mooppan, representing the school board members who lost in the Ninth Circuit, asserted that, the “only principled and workable test is to ask whether they exercised any duties or authorities of their job.” Justice Elena Kagan then asked if that would mean President Trump was acting in a private capacity when he blocked critics on his Twitter account (a lower court previously ruled that he was not). Mooppan conceded that, under his test, President Trump would be acting as a private citizen.
Representing the Garniers, attorney Pamela Karlan offered a different test: if the board members were broadly doing their jobs when they blocked the Garniers, then it should be presumed as state action. Justice Alito, in turn, expressed concern about the breadth of Karlan’s test, noting that officials “have told me they’re always on call.
They’re always doing their job. They’re always being approached by constituents.”
Representing Kevin Lindke, the Michigan resident who lost in the Sixth Circuit, attorney Allon Kedem argued that “a public official who creates a channel for communicating with constituents about conduct in office and then blocks a user from that channel must abide by the Constitution.”
Justice Clarence Thomas pointed out a key distinction between the two cases, which is that the board members in California only had a few personal posts on their Facebook pages, while the city manager in Michigan had many.
It’s unclear where the Court will land on this issue. As Justice Neil Gorsuch said, there is a “profusion of possible tests” available.
In an amicus brief filed by the foundation of Protect The 1st in O’Connor-Ratcliff v. Garnier, we argued that “no single factor is required to establish state action; rather, all relevant factors must be considered together to determine whether an account was operated under color of law.”
In other words, a holistic test is likely appropriate here. More practically, “governmental bodies can and should adopt clear rules separating official accounts from private ones,” as Congress has done. Doing so would safeguard First Amendment rights for public officials and citizens alike.