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United States Supreme Court: Public Officials Can Be Held Liable for Blocking Critics on Social Media
On March 15, the U.S. Supreme Court held that First Amendment rights of online commenters are only protected on the accounts of public officials who:
- Have authority to speak on behalf of the government; and
- Are actually using that authority on their personal social media account.
This new standard came out of two related cases—O’Connor-Radcliff v. Garnier and Lindke v. Freed.
In O’Connor-Ratcliff, the defendant was a school board member who created a public Facebook page to promote her school board campaign—she also had a separate Facebook page for personal use. Post-election, the board member continued to use the two Facebook pages in their respective ways, and also created a Twitter page for school board business use. A member of the public commented on the board member’s Facebook page with 42 nearly identical separate posts and 226 identical replies on the Twitter page over a 10-minute period. In response to the repetitive posts, the board member deleted the comments prior to blocking the user from the pages.
In Lindke, the defendant was a city manager who: maintained and utilized a Facebook page which stated his official city position; sometimes used his page for both personal and public business; and often interacted with citizens on city-related business posts. A member of the public commented in disagreement regarding one of the city manager’s city-related posts, which the city manager then deleted and later blocked the user.
The Supreme Court reviewed both cases and set forth a new “state-action doctrine test” that requires the aggrieved citizen to establish the following:
- The public official had actual authority to speak on behalf of the government on a particular matter; and
- The public official exercised that authority in social media posts.
The court emphasized that the type of social media platform matters, in so far as the blocking features and how far-reaching the action is. Noteworthy, the court stated, “[a] public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
Both cases are vacated and remanded for the lower courts to apply the new state-action test outlined above.
Contact: Jayme Pierce, General Counsel - jpierce@orcities.org
Last Updated 3/22/24