The U.S. Supreme Court on Tuesday considered how school board members interact with constituents on social media, with the justices wrestling over whether a public official鈥檚 personal page discussing government business amounts to state action.
The case has broad implications not just for school districts鈥攖he locus of an increasing amount of politically inflected debate, but for public officials at large, and whether they may block some members of the public.
鈥淭his is a case where there are First Amendment interests on both sides,鈥� Justice Elena Kagan said during arguments about two school board members who blocked constituents from their personal, but public-facing, Facebook pages. 鈥淚 mean, just as there may be First Amendment interests in protecting the private speech of government employees, there are also First Amendment interests in enabling citizens to access the important parts of their government.鈥�
鈥淭hat鈥檚 what makes these cases hard,鈥� Kagan added.
The court heard three hours of arguments in two cases involving public officials who blocked constituents from public Facebook and X鈥攆ormerly known as Twitter鈥攑ages. In , two board members in the Poway, Calif., school district blocked two parents who had 鈥渟pammed鈥� or posted repetitive comments to the board members鈥� postings. In , the city manager of Port Huron, Mich., blocked a local resident who posted comments criticizing the city鈥檚 pandemic policies.
Those constituents sued under the First Amendment鈥檚 free speech and petition clauses. In the school board members鈥� case, the U.S. Court of Appeals for the 9th Circuit, in San Francisco, ruled that the board members had held their social media pages out to be official channels of communication with the public about the work of the school district, and thus their blocking of the two parents was a matter of state action.
In the city manager case, the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, held that the official鈥檚 public Facebook page was not state action.
Hashim M. Mooppan, a Washington lawyer representing Michelle O鈥機onnor-Ratcliff, who is still a member of the Poway school board, and T.J. Zane, who left the board last year, told the justices that individuals who hold public office are still private citizens.
鈥淲hen acting in their personal capacity, they retain their First Amendment rights to decide who can participate in a community discussion that they host at their own property,鈥� he said. 鈥淭hey are thus free to block users from their personal social media pages, unless they choose to operate those pages in their official capacities instead.鈥�
Pamela S. Karlan, a Stanford University law professor representing Christopher and Kimberly Garnier, parents of three children in the Poway district who at the time posted frequently to the school board members鈥� pages, said that under California law, school board members have a duty to receive feedback from their constituents. The content and the appearance of the board member鈥檚 public social media pages, which overwhelmingly featured school district business, suggested they were 鈥渢ools of governance,鈥� she said.
鈥淩efusing to find state action would have devastating consequences for the public because they would be denied access to the sites on which their officials are talking to them and asking for their reactions,鈥� Karlan said.
Fitting social media-era issues into traditional First Amendment concepts
The arguments Tuesday highlighted the growing First Amendment implications of social media use by government and public officials. The Supreme Court has other cases this term that will address other legal issues of the cyber age. And the question of whether an official may block some constituents has arisen at the highest levels of government.
Former President Donald Trump was sued by some of those he blocked from his personal Twitter account when he was president, with a federal appeals court ruling that his account was a form of government action. The Supreme Court was considering whether to take up Trump鈥檚 appeal when he lost re-election in 2020 and his case was dismissed as moot.
Kagan on Tuesday referred to Trump鈥檚 many Tweets while in the White House and said that he seemed 鈥渢o be doing, you know, a lot of government on his Twitter account. I mean, sometimes he was announcing policies.鈥�
鈥淚 don鈥檛 think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,鈥� Kagan said. 鈥淚t was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.鈥�
The arguments also revealed some limits on the justices鈥� comfort with platforms they may peruse, but do not appear to be participating in via their own pages (unless one or more are doing so pseudonymously).
鈥淚鈥檓 not a Facebook person,鈥� Justice Clarence Thomas said as he asked a question about that social media platform鈥檚 terms of service, to a ripple of laughter in the courtroom.
Justice Sonia Sotomayor, referring to the fact that O鈥機onnor-Ratcliff also had an account on what is now X, said: 鈥淚鈥檓 going to continue to call it Twitter because that鈥檚 what it is here, OK?鈥�
With two members of the U.S. solicitor general鈥檚 office arguing in support of the public officials in the two cases by arguing for a test that focused on the social media platforms being 鈥減rivate property,鈥� Chief Justice John G. Roberts Jr. said, 鈥淚n what sense is this really private property?鈥�
鈥淚t鈥檚 just the gathering of the protons, or whatever they are, and they pop up on [one person鈥檚] page and they could pop up on somebody else鈥檚 page,鈥� Roberts said. 鈥淪hould I be concerned about the fact that we have this old concept applied to what we always say is some new phenomenon?鈥�
Some of the discussion did involve trying to fit new situations under social media into older cases and concepts.
Justice Samuel A. Alito Jr. suggested a hypothetical in which a small town was divided over a proposal to close its elementary school and send children to another school 25 miles away.
鈥淭he mayor is in favor of closing down the school,鈥� Alito said. 鈥淪o the mayor holds a meeting on public property and everybody can go and express their views. And after that meeting, the mayor says: 鈥榃ell, that didn鈥檛 go well. There was an awful lot of opposition expressed to this. Let鈥檚 have another meeting, and this time we鈥檙e going to have it on my farm, and I鈥檓 going to post people at the entrance, and we鈥檙e going to exclude the people who spoke vociferously and articulately against my proposal.鈥� Is that allowed?鈥�
Sopan Joshi, an assistant to the U.S. solicitor general arguing in support of the school board members, said that would be OK as long as no government resources were being used and the meeting wasn鈥檛 deciding the issue of whether to close the school.
鈥淚t鈥檚 no different than elected officials anywhere or government officials anywhere who choose to speak only to Republicans or only to Democrats in order to get views on what they ought to do when they exercise their official duties,鈥� Joshi said. 鈥淣o one thinks that that鈥檚 state action.鈥�
Running into your constituents at the supermarket
Alito also asked about a mayor who is grocery shopping and runs into constituents. May he converse with his supporters but tell a known opponent to leave him alone and call his office?
Karlan said there were times when a public official would be off duty. 鈥淐an they say, 鈥業 don鈥檛 want to talk to you right now, you know, the ice cream is melting鈥�? Of course, they can, because that鈥檚 not violating somebody鈥檚 First Amendment rights,鈥� she said.
The brick-and-mortar discussions eventually became too much for Kagan, who late in the argument in the city manager case observed that changes wrought by social media are happening at a rapid clip.
鈥淎nd part of that change is that more and more of our government operates on social media, more and more of our democracy operates on social media, public discourse,鈥� Kagan said. 鈥淭his is the forum for officials to talk to citizens, for citizens to talk to officials, for citizens to talk to each other.鈥�
The idea that 鈥渨e can solve this case by thinking about grocery stores is really not taking into account the big picture of how much is going to be happening in this forum and how much citizens will be foreclosed from participating in our democracy鈥� if public officials may block them, Kagan said.
Decisions in the two cases are expected by the end of the court鈥檚 term next June.
