Supreme Court defines when public officials may block critics on personal social media accounts

WASHINGTON – A unanimous Supreme Court on Friday defined when the personal social media account of a public official is a government action, trying to settle an issue that first arose during the Trump administration about whether constituents can be blocked from commenting or from following accounts.

A public official may block constituents, the court said, unless the official had the power to speak on the government’s behalf and intended to do so through their personal social media account.

“State officials have a choice about the capacity in which they choose to speak,” Justice Amy Coney Barrett wrote in her opinion for the court. “If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.”

A key question, the justices said, is not whether an employee had some authority to communicate with constituents but whether any "alleged censorship" relates to an issue that falls within the employee's responsibility.

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The court had been asked to decide if a city manager in Michigan was allowed to block residents from his Facebook page and whether Southern California school board members could bar parents from commenting on their personal Facebook and Twitter accounts.

The Biden administration had weighed in, arguing that the accounts were personal. But lawyers for the blocked constituents said the officials were performing public functions on their accounts.

The court sent both cases back to lower courts to decide if the actions were proper based on Friday's ruling.

Freedom of speech rights on both sides

During the October oral arguments, the justices – who have no social media presence themselves − expressed a need to give guidance on what’s allowable to the nations millions of government employees. Both sides, they noted, had freedom of speech interests. And the line between personal and official communication on social media is often blurred, Barrett wrote.

The court had not taken a position when it was previously asked whether former President Donald Trump could block criticisms of his prolific Tweets. In 2021, the justice dismissed the case as moot after Trump left office and his his Twitter account was suspended.

Even for public officials who do not use social media as prominently as Trump did, the free speech questions continue to grow as social media plays an increasing role in the lives of Americans and democracy.

Thomas Berry, a scholar at the libertarian Cato Institute, said the court struck a reasonable balance between the public’s right to access official state communications and the rights of government officials to exercise their own private speech.

If, for example, a president formally announces on X that he’s hired or fired a federal official, he probably could not block anyone from reading or commenting on that post, Berry said.

But Martin Redish, a First Amendment expert at Crowell & Moring, said it’s possible the lines the court tried to draw will be difficult to apply in individual cases.

"The court obviously concluded the risk was worth it, and that is a reasonable conclusion," Redish said.

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What the lower courts decided

In one of the cases decided Friday, O'Connor-Ratcliff v. Garnier, two elected members of a school board near San Diego, California, blocked the parents of students in their district from their personal social media accounts after they raised concerns about race relations and other issues. The officials said the number of messages – one parent left the same comment on 42 posts – amounted to spam. 

Attorneys for the school board members said the only duty they had to interact with the public was at school board meetings.

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But the San Francisco-based 9th U.S. Circuit Court of Appeals sided with the parents.

In another case, Lindke v. Freed, the city manager of Port Huron, Michigan, blocked several residents from his Facebook page, including one who argued in a post that city leaders were eating at a "pricey" restaurant during the COVID-19 pandemic rather than talking to residents. 

The manager shared personal updates on Facebook along with information about his job, such as news about leaf pickups and whether Port Huron residents are allowed to have chickens.

His attorney said a public official should be able to speak about their job on a personal Facebook page as long as they’re not taking official action.

The Cincinnati-based 6th Circuit Court of Appeals ruled in the city manager’s favor.

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More social media decisions to come

Friday's opinion is just one of the court decisions expected this term to grapple with free speech right in an increasingly digital world.

The Supreme Court is also reviewing challenges to laws in Texas and Florida that would limit the ability of platforms like Facebook, YouTube and X to moderate content.

And it will settle a dispute about whether officials in the White House and federal agencies violated the First Amendment when they leaned on social media companies to suppress content it viewed as disinformation about the election and COVID-19.