Washington, D.C. — Electronic Frontier Foundation urged the Supreme Court today to send a loud and clear message to government officials around the country who use social media in furtherance of their official duties, but then block people who criticize them: Doing so violates our First Amendment right to receive and respond to government communications.
EFF, Knight First Amendment Institute at Columbia University, and Woodhull Freedom Foundation asked the court in a brief filed today to protect the First Amendment rights of people to access and comment on the communications that elected officials post on social media to advance their official duties.
The use of social media by government officials and agencies is routine, and courts are grappling with the question of when that use is subject to First Amendment limitations and when it is not, including whether they can block people whose views they don’t like. In today’s Supreme Court brief, EFF and its partners argued that the Justices should establish that, in determining whether an official’s use of social media is state action subject to the First Amendment, courts must employ a functional test that looks to how an account is actually used.
If the use does qualify as state action, the brief argues, then courts must apply the well-established ban on viewpoint discrimination in public and nonpublic forums, meaning that the officials cannot block views just because they disagree with them.
“Social media has become an essential part of modern civic engagement,” said EFF Civil Liberties Director David Greene. “Public officials and agencies use social media for a wide variety of governmental functions, including providing the public with critical public safety information. Our First Amendment rights to get this information and to interact with our public officials shouldn’t be so easily negated by our officials using preexisting ‘personal’ accounts rather than accounts specific to the public office.”
“We are asking the Court to find that the ultimate test is how an account is used. If officials choose to mix government and nongovernment content on their account, they must accept the First Amendment obligations that go with using their account for governmental purposes,” said EFF Senior Staff Attorney Sophia Cope.
“Woodhull is proud to join EFF in presenting these important arguments to the Court, as viewpoint discrimination by government officials often impacts those expressing non-conforming positions on matters involving sexual freedom,” Woodhull Freedom Foundation President Ricci Levy said.
The court is reviewing two cases. In Lindke v. Freed, a city manager used his Facebook page to communicate about his administrative directives and posted pictures of his family, dog, and home improvement projects. He deleted comments by, and blocked, a local resident who posted comments critical of the city’s response to the COVID-19 pandemic.
The resident sued, alleging violations of his First Amendment rights. A federal district court ruled against him, a decision that was upheld by the 6th Circuit, which said that no law required the manager to operate a Facebook page and no government employees maintained it.
In the second case, O’Connor-Ratcliff v. Garnier, two school district trustees continued to use the same Facebook and Twitter accounts they created to promote their campaigns after they were elected. They used the accounts to solicit public input about school board decisions and to communicate with parents about school safety.
They blocked parents who posted comments on their pages critical of the school board. The parents sued for First Amendment violations. The trustees argued that blocking people on their social media accounts didn’t violate the First Amendment because the accounts were “personal” accounts that shouldn’t be constrained by free speech rules imposed on the government. A district court and the 9th Circuit ruled against them.
The Supreme Court should clear up once and for all the question of whether elected officials using social media in furtherance of their official duties can sidestep their First Amendment obligations because they’re using a nominally “personal” or preexisting campaign account. The answer is no.