Supreme Court To Consider Whether Politicians Can Block You on Social Media
Plus: Missouri attempts to ban gender transition treatments for adults, another bad social media bill hits Congress, and more...
When does blocking people on social media violate the First Amendment? When you're a public official—maybe. Whether elected officials and government employees can smash that block button has been debated for years. Now that question heads before the U.S. Supreme Court, which announced this week that it would hear two cases concerning local officials blocking people critical of them.
Lindke v. Freed revolves around the distinction between official and personal social media accounts. James Freed, the city manager of Port Huron, Michigan, deleted a critical comment that Kevin Lindke posted to Freed's personal Facebook page. He then blocked Lindke. The U.S. Court of Appeals for the 6th Circuit said that because Freed used his Facebook account in a personal capacity and not in his capacity as a public official, blocking Lindke did not violate the First Amendment.
O'Connor-Ratcliff v. Garnier, the second case heading to SCOTUS, involves two school board members in Southern California who blocked critical parents Christopher and Kimberly Garnier on Facebook and Twitter. The U.S. Court of Appeals for the 9th Circuit ruled that the school board members violated the First Amendment by blocking the Garniers.
The decision disparity in these two cases makes the issue ripe for the Supreme Court.
"This has long been an issue of tension between governments, sunshine laws, and the platforms," notes tech writer Katie Harbath in a post on the issues and tradeoffs the Court will have to consider.
It seems simple on the surface. Citizens should not be barred from accessing information from their government. They should be able to engage respectfully. Officials shouldn't be able to shut down critics. But this raises two questions:
- Is there a difference between the right to access information versus the right to engage? For instance, for many platforms, even if you are banned from engaging, you can still see the content. Is that ok?
- How to handle people who disrespectfully engage by spamming or posting hate speech or harassment. There are some narrow guardrails the police and governments can put on protesters. What does that look like online? Is there a difference between what a government official can do versus what a company can do to an official government page? That's what we are all trying to figure out.
[…] I also wonder how these cases could affect the decisions by companies from fact-checking politicians (or not), any reduction in the reach of official content, or even sorting of comments. For instance, Facebook created a tool called constituent badges so offices could know whether a comment came from a constituent. Should that make a difference in if you can ban an account or not?
According to SCOTUSblog's Amy Howe, the Court will likely hear arguments in these cases in the fall.
Howe notes that this is not the first time the Court has been asked to consider these issues:
In 2021, the justices considered a petition from former President Donald Trump presenting a similar issue. The case was filed by the Knight First Amendment Institute and seven individuals whom Trump blocked on Twitter after they criticized the president and his policies. The lower courts agreed with the plaintiffs that blocking them on Twitter violated the First Amendment, but the justices sent the case back to the court of appeals with instructions to dismiss the case because by then Trump was no longer president.
Justice Clarence Thomas wrote an opinion in which he agreed with the court's disposition of the case but also emphasized that the case "highlights the principal legal difficulty that surrounds digital platforms – namely, that applying old doctrines to new digital platforms is rarely straightforward." Thomas suggested at the time that the justices "will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms" – which they agreed on Monday to do in both cases.
FREE MINDS
Missouri tries to restrict gender transition treatments for adults and minors; judge says no—for now. It's bad enough when governments try to insert themselves into the private medical decisions of families with transgender children, as a rash of state lawmakers have recently done (which the Department of Justice is challenging). Missouri says that the government knows what's best for transgender adults, too.
Earlier this week, Missouri Attorney General Andrew Bailey released emergency rules—which went into effect yesterday—that "prohibit health care workers from offering medical gender-transitioning interventions unless they ensure someone has exhibited medically documented gender dysphoria for the past three years, received at least 15 separate hours of therapy and 'resolved' any existing mental health issues," per St. Louis Public Radio. "The attorney general has said the regulations aim to protect minors from receiving procedures too quickly. However, the regulations do not only apply to those under 18."
One only needs to look at the legality of plastic surgery to see how discriminatory this regulation is. An adult can choose to have their breasts enlarged, their tummy tucked, their nose shaped, their vagina tightened, or their forehead lifted without interference from the government. They can choose to sterilize themselves through procedures like vasectomies or to preemptively remove breast tissue that has a chance of someday becoming cancerous. They can take hormones like estrogen to help offset the effects of menopause or hormonal birth control to prevent pregnancy. And they can do all this without mental health evaluations or psychiatric permission slips. But if an adult in Missouri wants to take hormones or undergo some surgery to more closely align their appearance with their gender identity, the state gets to say no?
For now, a judge has halted Bailey's new treatment restrictions. On Wednesday, St. Louis County Circuit Judge Ellen Ribaudo requested more time to review the issue and delayed the rule taking effect until following Monday at 5 p.m. Ribaudo said "she anticipates she will issue a ruling before then," notes NBC News.
FREE MARKETS
Lawmakers want to ban kids from social media and ban teens from algorithmic feeds. It never ends…
NEWS: I just introduced an important bill with three of my colleagues @brianschatz @SenTomCotton @SenKatieBritt who are also parents of young kids.
Our bill:
- prohibits kids under 13 from being on social media
- requires parental consent and prohibits algorithms for kids 13-17 pic.twitter.com/KBumDRlcx1— Chris Murphy ???? (@ChrisMurphyCT) April 26, 2023
QUICK HITS
• The latest Citizens Against Government Waste report on pork-barrel spending is out.
• Don't believe media fearmongering about spending cuts, writes Veronique de Rugy.
• Congressional Democrats are trying to pass massive new child care subsidies.
• The cop who killed Breonna Taylor has a new law enforcement gig.
• New bipartisan legislation in the House of Representatives would seal federal arrest records for folks not convicted of a crime, seal federal arrest records related to low-level, nonviolent drug offenses after those convicted have completed their sentences, and help states implement programs to automatically seal or expunge eligible criminal records.
• Louisiana law "grants police officers broad legal rights to challenge or overturn disciplinary actions over minuscule technical violations during internal investigations," notes Joseph Cranney of The Advocate. "The law often shields officers from administrative discipline even when there's clear misconduct."
• A bill that has passed in Indiana would "will strip away protections for material that is disseminated for educational purposes and opens schools, teachers, and librarians up to penalties if a parent disagrees with material available in a school library," warns the American Civil Liberties Union of Indiana.
• Yikes:
This is madness. A government database to track your record of "bias incidents." Not crimes. Just statements/clothing that are reported as exhibiting bias.
And it sounds like there is a real threat this could become Minnesota law. https://t.co/AbTWUQ6J0z
— Casey Mattox (@CaseyMattox_) April 28, 2023
More on the Minnesota proposal here.
