Can an elected official block you from their social media accounts?
On October 31, the United States Supreme Court will hear arguments in two cases — Lindke v. Freed and O’Connor-Ratcliff v. Garnier — that may decide whether and under what circumstances government officials can block private citizens from their personal social media accounts.
The first involves John Freed, the city manager of Port Huron, Michigan, who regularly used the Facebook page he first created as a college student to share a mix of news ranging from the opening of a new city playground to updates about his home improvement projects. When Port Huron resident Kevin Lindke commented negatively on one of his photos in March 2020, Freed deleted Lindke’s remarks and blocked him from accessing the page. The second case arose in Poway, California, where two school board members, Michelle O’Connor-Ratcliff and T.J. Zane, blocked two local parents, Christopher and Kimberly Garnier, from their social media accounts, which they too had created prior to taking office.
In both cases, the aggrieved constituents sued under a federal law — Section 1983 of Title 42 of the United States Code — which requires that people acting on behalf of the government must not deprive anyone “of any rights, privileges, or immunities secured by the Constitution…” But the separate appeals courts hearing the two cases rendered opposing judgments, relying on different analyses.
These are just two of several major cases involving social media the Court will decide during the 2023-2024 term, including disputes about government officials’ ability to ask social media platforms to remove content and two state laws that could reduce content moderation. Constitutional law expert Noah Feldman says that “by the end of June of 2024, we’ll have a whole new world of Supreme Court doctrine with respect to social media platforms.” Harvard Law Today recently spoke to Feldman, the Felix Frankfurter Professor of Law at Harvard Law School, about the two cases, the arguments on either side, and the potential pitfalls of treating government officials’ social media accounts as public spaces open to all.
Harvard Law Today: I imagine that public officials have been blocking citizens from their social media accounts for many years. Why is this question only now coming to the Supreme Court?
Noah Feldman: There was an earlier case [Knight First Amendment Institute v. Trump] raising the same set of issues involving Donald Trump blocking people from his Twitter account. And that went through the federal district court and the U.S. Court of Appeals for the Second Circuit. But then, Trump was voted out of office before the Supreme Court could weigh in on it. And the Supreme Court determined that the case was mooted, in consequence of which the whole thing had to be litigated again, and it took a little while for that to make its way from the district court to the court of appeals, and back to the Supreme Court. So, it’s been in the public eye and in the eye of First Amendment experts for a while, but only now is the Supreme Court going to hear arguments.
HLT: What arguments support the government officials’ position that these are strictly private accounts?
Feldman: There are a few different arguments to be made by the government officials. One is that when speaking on social media, they’re speaking in their personal capacity and not in their official capacity as government actors. That argument only works, or is even plausible, if your social media account isn’t the official U.S. government social media account, which in some cases it is, in some cases it isn’t.
A second argument, to my mind perhaps even stronger, is that it’s a basic misunderstanding of the doctrine of the designated public forum to say that when you create a social media account, you’re designating as a public forum this space where people could respond to you. Because if you think about it, when the White House opens the White House press room, it’s allowing in lots of media. But it’s not a genuine public forum where anyone can come in and speak. You and I can’t just appear there. You have to be validated by the government and permitted to enter. And in fact, if the government doesn’t like you, or the president doesn’t like you, they can exclude the people that they don’t want from that space. So, if you think that the space on your social media account where people can respond is more like the White House press room, then the government hasn’t created a true public forum in that space.
And in further support of that view, the government officials could also say that they’re not the ones who created the public forum. The social media platform created that forum. And part of the way that social media platforms work is that you’re allowed to block people. That is part of the functionality. And in that sense, it’s a mistake to think that the minute I open a social media account, it’s automatically a public space. It’s not. It’s a curated space, which I, the person who opened the account, am entitled to curate.
HLT: How about the arguments on behalf of the folks who were blocked on social media?
Feldman: The best argument for the folks who are blocked is that, today, we do a lot of our talking on social media, and if the government official generally allows comments, the government official has effectively created a new forum for discussing government matters. And it doesn’t matter that it’s on social media because we have this image that a space on social media that I open is my space, even though, technically, it’s not my space, because it belongs to the social media platform. And you would add to that, that we don’t want, under the First Amendment, the government excluding discourse because of its viewpoint. If the government officials block you, that seems like they’re blocking you because of your viewpoint.
A further complicated issue here is, what’s the role of the platforms themselves? If platforms did not allow comments, this issue wouldn’t arise. So, some people think because there is a space for discussion, it must be a space for everyone to speak if the government is speaking. And that treats the social media platforms as having created this public good. On the other side, there’s something a little weird about the fact that everyone acknowledges that the platforms can themselves block users. So, if I break the rules of Facebook, Facebook can block me from their platform. If it were really a public forum, it seems weird that a private actor would be able to block me from participating in that forum.
HLT: Looking at the briefs, it looks like the disagreement between the two appeals courts came down to the fact that each approached the question differently, with the Sixth Circuit looking at the “totality of the circumstances” of the social media pages while the Ninth Circuit looked at the “appearance and purpose.” Can you say a little about both approaches?
Feldman: A test that asks about appearances is focused on the general public perception of a site for its use. A test that is more focused on function is more interested in what’s it actually being used for. I, myself, am not crazy about either of those tests. I would rather ask, who created the forum, who exercises control in that forum, and on what basis is that control exercised? Because I’m trying to include the circumstance where the government allows some speakers to participate in a forum, but not other speakers, such as the White House press room. And to me the threshold question is, should we treat the government official’s social media account as more like an invitation to some people to come and communicate in that space? Or should we treat it as a general space available to everyone from which some people have been excluded? And that, to me, is really the core question and that really turns on the question of control.
And the reason that I want to emphasize that is that we’re not talking about a public park, which is a classic public forum where everyone can come and go. We’re talking about what’s called the designated public forum, which only becomes a public forum because the government has designated it as such. And so, in that context, to me, the designation is the core act. And it’s a designation that has to do with control: who is allowed into that space? The White House could close the press briefing room and say, “No one can come into the White House.” The president could invite reporters to come into the president’s office, and the president can choose who those people are, even though the whole White House belongs to the people of the United States.
And so, it goes to the question of who controls the space. And that, to me, is more compelling as a basis for differentiating than these more amorphous questions of what it looks like or what its function is. Because if you think about it, what it looks like is a social media account. That’s not like any of the other things we’ve had before. It’s a new forum for communication. So, the what-it-looks-like test isn’t very convincing to me. And then the what-is-its-function question is entirely dependent on the rules that the social media platforms determine for what happens there. And I don’t think whether something is a public designated public forum should ultimately turn on what Twitter, or now X, or Facebook or Tik Tok say about that space.
HLT: One of the government officials, Mr. Freed, had included scriptural references on his Facebook page, alongside other personal posts, as well as government-related news. Would that have a different valence if it was decided that he was acting in an official capacity on his social media accounts?
Feldman: Well, it’s complicated because the president of the United States is a state actor, but he can quote scripture whenever he wants, and some presidents do. And that has never been understood to violate the Establishment Clause. What’s more, the constitutional rules for what violates the Establishment Clause are very much in flux right now, because last summer, the Supreme Court decided a case called Kennedy v. Bremerton School District, where it overturned existing Establishment Clause jurisprudence, and didn’t tell us exactly what’s going to replace it, saying there would now be a history and tradition test. So, there might have been a time where, under the Supreme Court’s jurisprudence, if the government actively endorsed religion — for example, put up a sign outside of a town saying this is a Christian town — that would have been seen as a clear violation of the Establishment Clause. And so, if you had a public official who was posting their beliefs about religion in a way that violated the idea of no government endorsement of religion, maybe that would have been unconstitutional. But right now, after the Kennedy v. Bremerton case, we don’t even have the doctrine that would have said that was, frankly, unconstitutional. So, in this instance, it’s probably not going to be determinative.
HLT: The U.S. solicitor general weighed in on these cases with amicus briefs. Why do you think the federal government might be so interested in how this question is decided?
Feldman: Well, the federal government has a major interest in the question, because the federal government has lots of people in it who speak on social media, and presumably want to be able to limit responses in some circumstances. Because that is a fundamental feature of social media. And if the Court were to hold that it’s government action to block speakers in that way, the consequence will be the government’s social media accounts are subject to limitations that you or my social media account are not subject to. We can block whoever we want, but the government wouldn’t be able to block whoever it wanted. And that would reduce the value of those social media accounts to the government. Fundamentally, this is a case that will affect many government officials.
HLT: If the Court rules against the government officials and says these are fundamentally public forums from which citizens cannot be blocked, how would the account owners then deal with the potential for online harassment or inappropriate comments?
Feldman: That’s a really hard question. And it’s one of the reasons that I think that direction would be a very dangerous one for the Court to take. There are certain forms of harassment that can be barred under free speech doctrine, but they tend to be in-your-face attacks. If someone is making political attacks on you that are nonetheless very nasty but don’t constitute true threats, then ordinarily, those would be free speech protected. That raises the following question: If the government official can’t block a user who’s speaking to them in an offensive or nasty fashion, can the government official ask the social media platform to bar the person for violating terms of service? I could do that if someone was harassing me online. You could do it. But the government official might not be able to do it.
And that is relevant to yet another case that the Supreme Court is also going to consider in this term [Murthy v. Missouri], which is about the limits that can be placed upon government actors when they communicate to the social media platforms that they should take something down, consistent with their terms of service. That case is about misinformation. But the same issue would exist with respect to speech that violated the terms of service. To me, it’s absurd to think that, if I’m a government official, and I go on social media, I have to subject myself to dehumanizing or sexist or racist or vulgar abuse that no one else on the platform has to suffer from. It also seems strange that the social media platform could take down that content, but that you, the government official user, couldn’t tell them about this content that was offensive to you. So, these are all things that I think are pretty anomalous, because as far as I know, we have no case law about a designated public forum where a third party has the authority to remove content.
HLT: Is there anything else you’d like to add?
Feldman: This term, the Court is going to decide three different sets of cases connected to social media, and they’re all very important. This is one. The second is the so-called jawboning issue we mentioned earlier where the administration asks the social media platforms to take down content. And then the third involve the Texas and Florida laws that in different ways seek to limit what content social media platforms may take down [Moody v. NetChoice and NetChoice v. Paxton]. That is to say, they press for more speech to be allowed on social media platforms than the platforms want to allow. All these cases have complex modes of interaction with each other. And they’re also the first important social media cases to be decided by the Supreme Court. So, by the end of June of 2024, we’ll have a whole new world of Supreme Court doctrine with respect to social media platforms.
This interview has been edited for length and clarity.
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