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Supreme Court decides when public officials can block critics online

Issue hinges on when an official’s personal account becomes an official government account

Storm clouds hang over the Supreme Court building. (Bill Clark/CQ Roll Call)
Storm clouds hang over the Supreme Court building. (Bill Clark/CQ Roll Call)

The Supreme Court laid out a new test Friday for when government officials violate the free speech rights of members of the public by removing comments or blocking access on their social media accounts.

The justices, in a unanimous opinion, ruled those officials must have authority to speak for the government, and then purport to use that authority on social media, before they could face liability for those deletions or blocks.

Justice Amy Coney Barrett wrote the decision for the court that determined the outcome in two First Amendment cases, one brought against two California school board members and one brought against a Michigan city manager.

Lower courts ruled differently in the two lawsuits, which hinge on when a government official’s personal social media account becomes an official government account and should come with protections for access.

Barrett wrote that courts should look at details such as whether an account is labeled as personal or official, or whether it is controlled by the government and passed down between office holders to determine whether it satisfies the new test.

Barrett wrote that government resources or labels can be an indicator that an account is a government one with the attached free speech protections, but it isn’t determinative. The same could be said for labeling an account “official” or “personal,” Barrett wrote.

“The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights,” Barrett wrote.

Barrett’s opinion distinguished between public posts and private interests such as public officials seeking reelection. The National Republican Senatorial Committee raised a concern in briefs in the case that a ruling could restrict congressional candidates from policing their own social media presences.

The justices wrote in decisions on both cases that the lower courts should decide the cases again using the new test. The court heard oral arguments in October.

In one case, the U.S. Court of Appeals for the 6th Circuit had held that a Michigan city manager could not be held liable for blocking a critic on his Facebook page because it was not explicitly a public page.

In the other case, the U.S. Court of Appeals for the 9th Circuit which held that California school board members could be held liable for blocking critics on X, the site formerly known as Twitter.

The ruling cuts against the Biden administration, which argued that government accounts should only be considered government accounts when public resources are used to maintain them.

The decision is the court’s first statement on the issue since a dispute over former President Donald Trump’s penchant for blocking critics on Twitter made it to the Supreme Court. The justices did not rule in that case, however, because Trump was no longer in office.

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