The Volokh Conspiracy
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S. Ct. Will Decide: When May Politicians Selectively Block Public Comments on Their Social Media Pages?
The question turns on whether the politician's web page is seen as the politician's own speech as a citizen, or as a government page.
When a government body (e.g., a school board or a city council) sets up a social media account, the public comments on that account are viewed as a "limited public forum," in which the government may not discriminate based on viewpoint. (See, e.g., Davison v. Randall (4th Cir. 2019).) The government therefore can't selectively remove comments on that page, or block commenters from posting to it, based on the comments' or commenters' views.
Individual social media users, on the other hand, are free to delete comments or block commenters (to the extent the social media software allows it). That includes government officials in their private capacities, whether they're acting as ordinary citizens or as candidates.
But how can courts tell politicians' official pages from their private ones? This question first hit the national news as to President Trump's blocking of commenters on the @RealDonaldTrump page, but that matter became moot when Trump left office. This morning, the Supreme Court agreed to hear two cases that deal with this issue, Garnier v. O'Connor-Ratcliff (coming from the Ninth Circuit) and Lindke v. Freed (coming from the Sixth). Here's part of the analysis from the Ninth Circuit decision:
[Poway Unified School District Trustees] O'Connor-Ratcliff's and Zane's use of their social media pages qualifies as state action under § 1983.
First, the Trustees "purport[ed]…. to act in the performance of [their] official duties" through the use of their social media pages. The Trustees identified themselves on their Facebook pages as "government official[s]," listed their official titles in prominent places on both their Facebook and Twitter pages, and, in O'Connor-Ratcliff's case, included her official PUSD email address in the page's contact information. Zane, for his part, wrote that his Facebook page was "the official page for T.J. Zane, Poway Unified School District Board Member, to promote public and political information."
Consistent with the Trustees' official identifications on their social media pages, the content of the Trustees' pages was overwhelmingly geared toward "provid[ing] information to the public about" the PUSD Board's "official activities and solicit[ing] input from the public on policy issues" relevant to Board decisions. O'Connor-Ratcliff and Zane regularly posted about school board meetings, surveys related to school district policy decisions, the superintendent hiring process, budget planning, and public safety issues. So, both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public about the work of the PUSD Board.
Second, the Trustees' presentation of their social media pages as official outlets facilitating their performance of their PUSD Board responsibilities "had the purpose and effect of influencing the behavior of others." Zane's Facebook page, as of 2017, had nearly 600 followers, and O'Connor-Ratcliff's had nearly 300. Both Trustees actively solicited constituent input about official PUSD matters, including encouraging constituents to mark their calendars for upcoming Board meetings, to fill out surveys relating to Board decision-making, and to apply for volunteer committees run by the Board. And both Trustees sought feedback from constituents, and responded to their comments. It was by "invoking" their "'governmental status' to influence the behavior of those around" them that the Trustees were able to muster this kind of public engagement with their social media pages..
Finally, the Trustees' management of their social media pages "related in some meaningful way" to their "governmental status" and "to the performance of [their] duties." The Trustees used their social media pages to communicate about, among other things, the selection of a new superintendent, the formulation of PUSD's LCAP plan, the composition of PUSD's Budget Advisory Committee, the dates of PUSD Board meetings, and the issues discussed at those meetings. Those posts related directly to the Trustees' duties. More generally, the Trustees' use of social media to keep the public apprised of goings-on at PUSD accords with the Board's power to "[i]nform and make known to the citizens of the district, the educational programs and activities of the schools therein."
Moreover, "the specific actions giving rise to" the Garniers' claim—the Trustees' blocking of the Garniers from their social media pages—were "linked to events which arose out of [the Trustees'] official status." Although the Garniers' repetitive comments often were not directly responsive to any particular post by the Trustees, their comments predominantly dealt with issues related to the PUSD Board's governance of the District, particularly concerns about race relations in the District and racial disparities in suspension rates between white and black PUSD students, as well as allegations of financial wrongdoing by then-PUSD Superintendent John Collins. And the Trustees' stated reasons for blocking the Garniers, discussed in more detail below, were that the Garniers' comments, in their view, tended to "fill up the page," and detract from the messages they wished to communicate in their posts, many of which pertained to "the performance of [their] official duties." In other words, because the Trustees presented and administered their social media pages as official organs for carrying out their PUSD Board duties, the Trustees' decision to block the Garniers for allegedly interfering with that use of the social media pages "related in some meaningful way either to the [Trustees'] governmental status or to the performance of [their] duties."
Even though they clothed their pages in the authority of their offices and used their pages to communicate about their official duties, the Trustees contend that their use of social media did not constitute state action because the pages, they maintain, were personal campaign pages designed only to advance their own political careers, and because PUSD provided no financial support or authorization for the pages. Many of the Trustees' posts did concern workaday visits to schools and the achievements of PUSD's students and teachers, material that could promote the Trustees' personal campaign prospects. But the Trustees' posts about PUSD school activities generally do not read as advertising "campaign promises" kept or touting their own political achievements. After their election in 2014, the Trustees virtually never posted overtly political or self-promotional material on their social media pages. Rather, their posts either concerned official District business or promoted the District generally.
As to the lack of PUSD funding or authorization, the Trustees' pages did not contain any disclaimer that the "statements made on this web site reflect the personal opinions of the author" and "are not made in any official capacity." To the contrary, both in the appearance and the content of the pages, the Trustees effectively "display[ed] a badge" to the public signifying that their accounts reflected their official roles as PUSD Trustees, whether or not the District had in fact authorized or supported them.
And here's an excerpt from Lindke v. Freed:
[Port Huron City Manager] Freed's Facebook activity was not state action. The page neither derives from the duties of his office nor depends on his state authority. In short, Freed operated his Facebook page in his personal capacity, not his official capacity. Walking through the examples above shows why.
First, no state law, ordinance, or regulation compelled Freed to operate his Facebook page. In other words, it wasn't designated by law as one of the actual or apparent duties of his office. Nor do government funds show Freed operated the page in his official capacity. Facebook is a free social-networking site; Freed pays no fees to maintain his page. And there's no evidence he ever ran ads or any other paid content through Facebook, let alone using government funds. Thus, there's nothing to suggest operating the page was Freed's official responsibility.
Lindke disagrees, arguing that Freed maintained the page as part of his "job duties/powers as City Manager." Though he identifies no state law or even practice tasking Freed with social-media activity, Lindke points out that Freed believes "regular communication with local businesses and residents is essential to good government." And Facebook is one avenue to fulfill this "essential" task of communicating with constituents.
This argument proves too much. When Freed visits the hardware store, chats with neighbors, or attends church services, he isn't engaged in state action merely because he's "communicating"—even if he's talking about his job. If Port Huron's list of city-manager responsibilities mentioned operating a Facebook page to tell residents about city initiatives, that might be a different story. But Freed's own off-handed reference to "regular communication" can't render every communication state action.
Next, Freed's page did not belong to the office of city manager. Freed created the page years before taking office, and there's no indication his successor would take it over. Indeed, it would make little sense for the new city manager to take over a page titled "@JamesRFreed1." Lindke says little to contest this, noting only that if Freed takes a job with another city, his page's Port Huron connections "would be of no value" in that new role. Appellant Br. 39. So, he speculates, Freed might give the page to his replacement. But if, as Freed contends, his Facebook page was personal, the "value" of his Facebook ties bears little relation to his job title. And regardless, Freed created his page before he took office. It belonged to him before he was city manager, and we have no reason to believe it will change hands if he leaves his post. So this avenue for state action doesn't apply.
Nor does Freed rely on government employees to maintain his Facebook page. Freed is the page's only administrator— none of his staff have access to it. And there's no evidence that staffers were involved in preparing content for Freed to use on the page, or that staff ever posted on Freed's behalf. Lindke argues that some photos Freed posted "would be impossible for Freed to have done himself," and thus concludes that government employees must be taking his photos. But even if that's true, such minimal involvement isn't enough to transform a personal page into an official one. It could be different if Freed's employees designed graphics specifically for the page and no other use. But snapping a few candids at a press conference is routine—not a service Freed accesses by the "authority of his office." Indeed, his staff would likely do this even if Freed didn't have a Facebook page. Plus, even if staff took photos at Freed's direction, that would be de minimis help—not enough to render the page state action. So staff support can't prop up Lindke's claim, either.
Lindke presents no other reason Freed's Facebook activity relates to his job duties or depends on his state authority. Instead, he argues that we should find state action where "the presentation of the account is connected with the official's position." And understandably so—several other courts have used that approach, focusing on a social-media page's purpose and appearance….
[But] Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who's a public official.
That's why we part ways with other circuits' approach to state action in this novel circumstance. Instead of examining a page's appearance or purpose, we focus on the actor's official duties and use of government resources or state employees…. Freed did not operate his page to fulfill any actual or apparent duty of his office. And he didn't use his governmental authority to maintain it. Thus, he was acting in his personal capacity—and there was no state action.
