DONALD TRUMP repeatedly tested the bounds of America’s Constitution during his four years in the White House. One of his misadventures—blocking critics from viewing or interacting with his posts on Twitter, the site since rebranded as X—led to a federal appeals-court ruling that his cold shoulder had violated the First Amendment. But before the Supreme Court could review that decision, Mr Trump lost the 2020 election and Knight Institute v Donald Trump became moot.
On October 31st two cases not involving the 45th president teed up the same question for the justices: when does an official’s use of a personal social-media account become “state action” and thus subject to constitutional limits? Three hours of debate revealed the difficulty of distinguishing between personal use of Facebook and posts that are, in the terms of a precedent from 1982, “fairly attributable to the state”.
In O’Connor-Ratcliff v Garnier, a couple from Poway, a town near San Diego, sued two trustees of the school board for blocking them on Facebook and Twitter. The Garniers, who sent their children to school in the district, had irked the trustees by writing long, repetitive comments on their virtual pages. But they claimed that since the officials’ platforms were a forum for community discussion about school-board activities, their freedom of speech was unfairly curtailed when the officials blocked them. In July 2022 a unanimous panel of the Ninth Circuit Court of Appeals agreed, finding that the trustees had “cloaked” their accounts “with the authority of the state”.
But a month earlier, in Lindke v Freed, a similarly shunned constituent in Port Huron, Michigan, failed to persuade a panel of the Sixth Circuit Court of Appeals that his banishment from the city manager’s Facebook page was unconstitutional. The Sixth Circuit ruled that James Freed, the city manager, was not conducting official business on his personal Facebook page despite conversing with residents on policies related to the pandemic. His use of the account—which he opened years earlier as a college student to share pictures of his dog, details of takeout meals and struggles with a raccoon—was neither “pursuant to his actual or apparent duties” nor a direct exercise of “state authority”.
As the nine justices prodded rival tests, they struggled to come up with an approach that lets civil employees express themselves in a personal capacity while also protecting constituents’ right to get access to information and challenge officials from the dog-catcher up to the president.
In defence of the Sixth Circuit’s narrower test, Hashim Mooppan, the school board trustees’ lawyer, said that if Mr Trump had been tweeting himself—without help from a staffer—he would have been engaging in his right “to talk about the government in his individual capacity”. Justice Elena Kagan was sceptical. As president, Mr Trump was not just talking about his job but “doing…a lot of government” and “announcing policies” via Twitter, she said. To eject a citizen from that forum is “to cut a citizen off from part of the way that government works”.
Two lawyers from the Department of Justice argued alongside Mr Mooppan and Victoria Ferres (Mr Freed’s lawyer) to defend the officials’ right to free expression. The lawsuit forced Mr Freed to deactivate his Facebook account, Ms Ferres and Masha Hansford, the government lawyer, said. Finding state action in personal pages, Ms Hansford added, “imperils the freedom of a government official to speak as a public citizen on matters of public concern”.
Attorneys representing the blocked constituents acknowledged that officials have a right to free speech. Allon Kedem, the Michigan critic’s lawyer, said the city manager and other employees should have “ample room…to communicate in their personal capacities” but should not be able to “evade the constitution”. Pam Karlan, arguing for the Garniers, said the school-board members could have put up a disclaimer emphasising the personal nature of their accounts.
A majority of the court seemed to coalesce around a principle elicited by questions from Justice Brett Kavanaugh: merely reposting official business on a personal account does not count as state action. But Mr Kedem cited examples of when Mr Freed had broken news, including the city’s decision to give residents a 30-day reprieve before shutting off their water for lack of payment. Mr Freed added, in response to a query, that those who recently had their water turned off would get it turned back on. Even if information like this was available elsewhere, Mr Kedem noted, the city manager’s Facebook page was the most natural place to learn it: “There was essentially no other game in town.” If that becomes part of the court’s ruling, public officials could erase constituents’ rude comments on their cat GIFs, but not block them from reading (or debating) rules on pet ownership. ■