By Alaina McWhirter

Disclaimer: The views expressed in this post are those of the author, and do not necessarily reflect views of the Journal, the William H. Bowen School of Law, or UA Little Rock.

Before social media, the people of the United States marched in the streets and walked through parks to protest and criticize the government. This “right to criticize,” as Justice Brennan declared in New York Times v. Sullivan, is a central tenet of the First Amendment right to freedom of speech and expression. Today, our nation has turned to social media as the prominent news outlet and channel for communication of questions, comments, and concerns to political and public officials. According to a Pew Internet Research Study, 71% of X users, formerly known as Twitter, get their news there and 67% of Facebook users receive their news from the social metaverse platform.. These ever-developing social media spaces facilitate public criticism of the government, and in turn, the government’s ability to limit this criticism is also concerningly convenient. Consequently, public officials have irrationally reacted to online critical speech and often resort to blocking users and deleting comments without considering the Constitutional violations such actions might amount to.

For example, while it is hard to believe that Congresswoman Alexandria Ocasio-Cortez and former President Donald Trump would have anything in common, both have been sued for blocking critics and removing comments from their personal social media accounts. Majority of those in the social media world may recall that both AOC and Trump notoriously intermingled personal remarks and official government business in their tweets, and as Justice Elena Kagan cited during oral arguments this week, “Trump did a lot of Government on his personal Twitter account, and it was an important part of how he wielded his authority.” Consequently, Trump has faced several lawsuits for blocking his critics on Twitter. AOC has settled two suits brought by two politicians she blocked on Twitter in 2019.

Furthermore, in 2018, the State of Arkansas and State Senator Jason Rapert settled a lawsuit brought by American Atheists who alleged that Rapert blocked members of the atheist group from his Twitter and Facebook accounts after they criticized Rapert on social media. In August of 2022, the parties finally reached a settlement agreement that required Rapert to unblock the atheist constituents from his social media accounts and pay $16,000 in legal fees to the atheist group.

Cases like the above upturn when victims of the blocking and removal of comments view such acts as a form of censorship and viewpoint discrimination and subsequently as a violation of their First Amendment right to expression in a public forum. But with the settling or dismissal of the majority  of these cases, the courts have obtained no definitive answer, and splits between the federal appeals courts have  occurred.

This past Tuesday, however, the Supreme Court heard oral arguments for two cases testing the ability of public officials to block their critics on social media. Lindke v. Freed and O’Connor-Ratcliff v. Garnier both ask whether the use of social media by a public official can be categorized as state action and if blocking individuals from public official’s personal accounts constitutes a First Amendment violation. In both cases, the plaintiffs have filed 42 U.S.C. § 1983 actions arguing that the act of blocking citizens from viewing or commenting on public officials’ social media accounts constitutes state action and deprives the plaintiffs of their First Amendment rights.

In Lindke v. Freed, Lindke, a Port Huron, Michigan resident, commented negatively on the city manager, Freed’s, Facebook post. After viewing the comment, Freed deleted Lindke’s remarks and subsequently blocked Lindke from accessing his Facebook page. Lindke sued Freed for blocking his comments on what was to be considered a “government” Facebook page, alleging that his First Amendment rights were violated, that this was not the first instance of this conduct by Freed, and that his removal and blocking of people and their comments have  occurred for “years and years.”

In O’Connor-Ratcliff v. Garnier, two public school board of trustee members blocked two parents from their Facebook and Twitter accounts after they frequently posted comments critiquing the school district’s board of trustees. Both trustee’s accounts were created prior to their elections but were updated to reflect their official titles and were used to post about school-district orders of business. The two trustees began to delete the critical comments by the Garniers and ultimately blocked the Garniers on Facebook and Twitter. The Garniers then sued, arguing that the Trustee’s social media accounts constituted public fora and that the act of blocking the Garniers violated their First Amendment rights.

These issues have landed in the lap of the Supreme Court at a time when  public officials across all local, state, and national governments have looked to social media as a primary method of communication. Furthermore, these cases present the Supreme Court with an opportunity to resolve the split between the federal appeals courts that has recently arisen . Will the Court take a narrow view of state action and rule that personal social media accounts are not subject to the First Amendment? Or will the Court hold that using social media to communicate about official duties results in the social media page operating as a public fora? After close to three hours of oral arguments this week, the Justices focused on deciphering whether the public officials were acting in their individual or official capacities when removing comments and blocking critics and whether doing so constituted state action. The answer is in the Justices’ hands and an answer is expected by the end of June 2024. Obviously stated, this future ruling will greatly impact whether public officials can privatize their official social platforms and block their critics to ultimately give themselves a praise-worthy outward appearance. In the past, however, the justices have wrestled with novel issues involving technology and the internet. While the resolution of these cases, in particular, is extremely desired, it may be of great difficulty to some Justices more than others; as Justice Clarence Thomas conceded early on that he is “not a Facebook person.”

Alaina McWhirter is a third-year law student at the William H. Bowen School of Law and also serves as an Executive Editor for the Arkansas Journal for Social Change and Public Service.

Posted in: Blog Posts, Legal Comentary

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