Blocking Critics? Deleting Posts? Politicians Should Think Twice After Supreme Court Ruling

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This week the United States Supreme Court issued its ruling in the case of Lindke v. Freed, addressing whether public officials can block their critics – and delete their posts – on social media. The case was brought by Port Huron, Michigan, resident Kevin Lindke, who was blocked by city manager James Freed after Lindke criticized Freed’s handling of the Covid-19 pandemic.

In a unanimous opinion (.pdf) written by justice Amy Coney Barrett, the court created a two-pronged test to determine if a public official’s speech on social media is attributable to the government – i.e. if the speaker is “engaged in state action.”

First, it must be established the speaker possesses “actual authority” to speak on behalf of the government. Next, it must be determined the speaker “purported to exercise that authority when he spoke on social media.”

If social media posts satisfy this two-pronged test, citizens may sue if they are silenced – even if the elected official is posting from a “personal” account.

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“For social-media activity to constitute state action, an official must not only have state authority — he must also purport to use it,” Barrett wrote for the majority.

Not surprisingly, the court’s opinion noted that distinguishing state speech from non-state speech was “a fact-specific undertaking in which the post’s content and function are the most important considerations.”

Prior to the ruling, First Amendment attorneys at Columbia University’s Knight Institute submitted an amicus brief imploring the court to be mindful of the free speech protection afforded to criticism of government officials.

“Given how common it is for government officials and agencies to conduct official business through social media, the First Amendment rights of persons to access such accounts and participate in their interactive spaces are critical to modern civic engagement” the brief read.

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In 2019, Knight Institute petitioners successfully argued in district court that former U.S. president Donald Trump‘s Twitter account was a “public forum” under the First Amendment – one from which the government “may not exclude people based simply on their views.”

While the Trump Twitter case didn’t make it to the supreme court (his failure to win reelection made the issue moot), it laid the groundwork for further challenges of elected officials’ ability to block constituents – eventually landing Lindke v. Freed before the high court.

Knight Institute senior counsel Katie Fallow was pleased by the court’s ruling.

“We’re gratified that the Court recognized that public officials must comply with the First Amendment when they use their personal social media accounts to carry out their official duties, as former President Trump did with his Twitter account,” she said. “The Court was also right to hold that public officials can’t immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.”

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Lindke’s original case will now be reconsidered by the lower courts in light of the Supreme Court’s new test for determining when a public official’s speech on social media is of an official nature.

With this ruling, public officials are officially on notice that – even through their personal accounts – they will still be governed by the First Amendment as to how they treat their constituents.

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ABOUT THE AUTHOR …

(Via: Travis Bell)

Dylan Nolan is the director of special projects at FITSNews. He graduated from the Darla Moore school of business in 2021 with an accounting degree. Got a tip or story idea for Dylan? Email him here. You can also engage him socially @DNolan2000.

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