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Justices grapple with when public officials can block people on social media
The three hours of arguments focused on what test should be adopted to judge these questions. As Ainsley Hayes once told us, "They're all about duty."
For three hours on Tuesday, fifteen lawyers debated back and forth at the U.S. Supreme Court about when a public official can block someone from their social-media pages.
The nine justices, two lawyers from the Justice Department, two lawyers representing the blockers, and two lawyers representing the blockees discussed many possible tests that could be applied for judging cases that come up across the country raising the question.
The decision could alter the way public officials from the president of the United States to school board members in California or a town manager in Michigan can address — or ignore — constituents. It also could, in turn, limit the First Amendment rights of those officials.
The court originally considered taking up the issue in conjunction with Donald Trump, but it ultimately dismissed that case when the high court appeal would have been heard after he left office. Now, though, the school board and town manager cases brought the issue back.
To start, let’s be clear: This is not a case about governmental social-media pages. Actions by government officials on such accounts are state action, subject to relevant First Amendment restrictions.
But, it does get rather complicated from there.
What if it’s a government official, but they’re posting on their personal account? That is the issue before the court: At what point can and should courts consider that to be state action?
It is, in short, a line-drawing case with, as Justice Elena Kagan said at one point, “First Amendment interests all over the place.”
The ruling could have implications not just for elected officials like Trump was, but also for appointed leaders in the community — and even line-level employees across all levels of government. It also, as illustrated in the Trump blocking case, can alter how and whether individuals can keep informed about what their government is doing.
As Kagan said of Trump’s Twitter account at one point on Tuesday, “I don't 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. It was an important part of how he wielded his authority.”
Going into arguments there were many possible tests being recommended for how to decide when an account could be blocked, but, as Justice Neil Gorsuch noted at one point, it seemed to him like most of the lawyers — and justices(?) — were “coalescing around a test that everybody more or less agrees on.” As he continued, the discussion “coalesced around an understanding of duties and authorities,” although “there's some discussion about how capacious that has to be.”
What would that test be?
The “duties and authorities” test was used in the town manager case below, which the town manager won at the U.S. Court of Appeals for the Sixth Circuit. There, Judge Amul Thapar wrote, “a public official operates a social-media account either (1) pursuant to his actual or apparent duties or (2) using his state authority. … It's only then that his social-media activity is ‘fairly attributable’ to the state. … Otherwise, it's personal ….”
Some of the meat that the Sixth Circuit put on that ruling in its opinion was too narrow, most everyone agreed on Tuesday, but where exactly it should end up was the primary use of the three hours of arguments.
Justice Amy Coney Barrett — apologizing for being “hung up on this duty question” — asked Pam Karlan, arguing for the California blockees, about an official who “has the authority to decide to be a mouthpiece for government,” even if there’s no obligation for the official to do so.
As to whether that would be state action, Karlan responded that “it would come down to a question of, as a matter of state law, did she have that authority” to — as Barrett put it in her question — “be a mouthpiece for government” on the official’s personal social-media account. “Because if she had that authority, then, yes, she would be a state actor,” Karlan said.
This was an example of Karlan pushing to expand the “duties and authorities” test to reach as close as possible to her initial test, which Justice Sam Alito had earlier characterized as being “whether government officials are doing their jobs.”
Hashim Mooppan, arguing for the blocking school board members, had started off the morning’s arguments, but it was in his rebuttal that he was most effectively able to push his aims, telling the court, “I think the fundamental problem with Ms. Karlan's submission is that she's defining it too broadly.“ Doing so would be a problem, Mooppan said, because “you have to recognize that government officials have the right to speak in their personal capacity about their jobs.“
This was a point — and concern — echoed later by Gorsuch, who asked in the second arguments about “the free speech rights of civil servants” and noted, interestingly, “[W]e number in the millions now across this country.” [Note to self: Gorsuch definitely has a personal Twitter account, right?]
The lawyer for the Michigan blockees, Allon Kedem, responded by stating plainly, “It is a concern that has to be balanced against the right of people in the town.” Later, in his rebuttal, Kedem pushed back on the government officials’ First Amendment interests by identifying four First Amendment interests on the blockees’ side of the case:
I think that there are four general values. First of all, we've talked a lot about losing out on access to information. … [S]econd, you lose access to the public official him or herself. … The third value … this is also a place where members of the town came to talk to one another, and that is part of the give and take of local self-government. And, finally, I think there's a dignitary interest … it also matters that it is the government who is doing it to you.
In service to those values, Kedem pushed for a test throughout his argument that would focus on assessing whether the public official “established” that the personal social-media account was “a channel of communication” relating to his governmental role.
By then, though, even that was compared to the “duty and authorities” test as expanded by Karlan’s earlier answers. In response to questions from Justice Ketanji Brown Jackson about whether there was a difference between his test and what Karlan had discussed, Kedem acknowledged overlap and sought to expand it a bit more, saying, “We also have a slightly broader principle that if you hold yourself out as doing your job through your page, that is also sufficient.”
At the end of the day, Gorsuch could have borrowed a line from The West Wing’s Ainsley Hayes, who told Lionel Tribbey more than 20 years ago, “They’re all about duty.”
Notably, the Biden administration’s proposed test — with a primary, presumptive focus on whether private property was involved or not — took hard hits from several corners. Chief Justice John Roberts disclaimed “any pejorative” intent before telling one of the two Justice Department lawyers that he was “surprised in reading the brief to see all the emphasis on private property,” given how the internet is always referred to as a “new phenomenon.” Later, Kagan put a perhaps even finer point on it in questioning the “archaic nature” of the proposed test.
The former solicitor general in the Obama administration, Kagan went on to tell the lawyer from the Biden administration’s solicitor general’s office of her “worry” that the private property-focused test “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 if the kind of rule you're advocating goes into effect.”
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