The Supreme Court ruled Friday that public officials have some flexibility in how they maintain their own social media accounts, even if they use them for government business, and they are allowed to delete comments and even block users in certain instances.
The justices, in a unanimous ruling, said officials cross the line only when they are clearly speaking on behalf of the government.
The decision gives a tremendous amount of leeway to judges to decide when the lines are crossed. Justice Amy Coney Barrett, writing for the court, acknowledged they were treading on tricky legal ground. She said each case will require careful sorting to see if an official crossed key lines to turn their account — or even a specific post on the account — into a public forum.
“While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights,” Justice Barrett wrote.
The case is one of several major social media tests the high court faces this term, as it sets new rules for the platforms and their role in public discourse.
Justice Barrett said courts may even need to adjust their rules based on which platform is being used, since some platforms allow more tailored censoring than others. That could be an issue in determining whether a public official has shut someone out of the forum altogether, or just silenced them on certain private posts.
Friday’s ruling could get a major test if former President Donald Trump wins the White House again. He regularly tangled with followers on his social media accounts, leading to groundbreaking legal challenges.
The case before the justices grew out of a dispute in Port Huron, Michigan, where James Freed maintained a Facebook account from his time in college. When he was named city manager of Port Huron in 2014, he updated his account by noting his new job, and began adding posts about government business to his usual stream of posts about his family, projects around his home and his dog, Winston.
During the COVID-19 pandemic, city resident Kevin Lindke began posting comments to the account complaining about Port Huron’s handling of public affairs.
Mr. Freed responded by erasing the comments from his account, then restricted Mr. Lindke’s ability to comment. Mr. Lindke could see posts but couldn’t comment on them.
Mr. Lindke sued, arguing Mr. Freed had turned his account into a public forum through his frequent talk of his government job, and the blocking amounted to illegal viewpoint discrimination.
Lower courts sided with Mr. Freed, the public official, though courts in other similar cases ruled in favor of the challengers, leaving the justices to sort out the mess.
Justice Barrett said the high court has often had to grapple with when a private official seems to be engaging in state action. But she said the Michigan case turned that on its head, asking when a state official is actually still acting in a private capacity.
“The question is difficult, especially in a case involving a state or local official who routinely interacts with the public,” she said.
She delivered a two-part test for a social media account to be considered state action: First, the account must be run by someone who has authority to speak on behalf of the government, and second the person must be exercising that authority at the time.
That means an official who posts about public health matters but doesn’t have purview over them is not state action, Justice Barrett said.
She also gave the example of a school board official who talks about pandemic restrictions in schools. If the official is speaking at the school board meeting, it’s official action. But if the official talks about the decision at a backyard barbecue, it’s private.
She said that’s tougher to suss out in some social media cases. In Mr. Freed’s case in Port Huron, he listed both his public job as city manager and his private roles as father, husband and dog owner.
“Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it,” Justice Barrett said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
Please read our comment policy before commenting.