LISTEN: Supreme Court considers whether public officials can block critics on social media

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WASHINGTON (AP) — The Supreme Court wrestled Tuesday with whether public officials can block critics from commenting on their social media accounts, an issue that first arose in a case involving former President Donald Trump.

Watch in the player above.

The justices heard arguments in two cases involving lawsuits filed by people who were blocked after leaving critical comments on social media accounts belonging to school board members in southern California and a city manager in Port Huron, Michigan, northeast of Detroit.

The cases force the court to deal with the competing free speech rights of public officials and their constituents, and all in a rapidly evolving virtual world.

“More and more of our democracy operates on social media,” Justice Elena Kagan said during three hours of arguments.

The cases are part of a term-long focus on the relationship between government and the private digital platforms. Justice Clarence Thomas hinted at coming cases when he described as “the looming elephant in the room” the power of Facebook and other platforms to take down accounts.

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Early next year, the court will evaluate Republican-passed laws in Florida and Texas that prohibit large social media companies from taking down posts because of the views they express. The tech companies said the laws violate their First Amendment rights. The laws reflect a view among Republicans that the platforms disproportionately censor conservative viewpoints.

Also on the agenda is a challenge from Missouri and Louisiana to the Biden administration’s efforts to combat controversial social media posts on topics including COVID-19 and election security. The states argue that the administration has been unconstitutionally coercing the platforms into cracking down on conservative positions.

Tuesday’s cases delving into the common use of social media by public officials are less overtly partisan. But they are similar to a case involving Trump and his decision to block critics from his personal account on Twitter, now known as X. The justices dismissed the case after Trump left office.

The @realdonaldtrump account had more than 88 million followers, but Trump argued that it was his personal property.

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“But he seems to be doing, you know, a lot of government on his Twitter account,” Kagan said. “I mean, sometimes he was announcing policies. Even when he wasn’t, I mean, I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account.”

Appeals courts in San Francisco and Cincinnati reached conflicting decisions about when personal accounts become official, and it seemed that the justices did not wholly embrace either ruling.

The justices did seem to agree that they should provide a clear legal standard, though where they would come down was unclear.

Justice Brett Kavanaugh, husband of a town manager in the Washington suburbs, said it is “definitely true” that local officials need guidance.

The first case involved two elected members of a California school board, the Poway Unified School District Board of Trustees. The members, Michelle O’Connor-Ratcliff and T.J. Zane, used their personal Facebook and Twitter accounts to communicate with the public. Two parents, Christopher and Kimberly Garnier, left critical comments and replies to posts on the board members’ accounts and were blocked. The 9th U.S. Circuit Court of Appeals said the board members had violated the parents’ free speech rights by doing so. Zane no longer serves on the school board.

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The other case involved James Freed, who was appointed Port Huron ’s city manager in 2014. Freed used the Facebook page he first created while in college to communicate with the public, as well as recount the details of daily life.

In 2020, a resident, Kevin Lindke, used the page to comment several times from three Facebook profiles, including criticism of the city’s response to the COVID-19 pandemic. Freed blocked all three accounts and deleted Lindke’s comments. Lindke sued, but the 6th U.S. Circuit Court of Appeals sided with Freed, noting that his Facebook page talked about his roles as “father, husband, and city manager.”

The Biden administration is siding with the officials and urging the court to respect the distinction between officials’ private and public lives. In these cases, the government doesn’t control or operate the accounts, the Justice Department said.

Several justices seemed dissatisfied with the administration’s approach. “To make so much turn on who owns the Facebook page seems quite artificial,” Justice Samuel Alito said.

On the other side of the case, the American Civil Liberties Union wrote that the officials in both cases took public, or state action, “when they excluded dissenting constituents from social media profiles that they held out as extension of their public office.”

The justices lobbed one hypothetical question after another at the six lawyers who argued before them Tuesday. Justice Amy Coney Barrett stopped herself midway through one offering, after she said one of her law clerks could start posting “the official business of the Barrett chambers” on social media.

“That wouldn’t be OK,” she said, seeming to speak directly to the law clerks, who often attend Supreme Court arguments.

Decisions in O’Connor-Ratcliff v. Garnier, 22-324, and Lindke v. Freed, 22-611, are expected by early summer.

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