The First Amendment is important to the Supreme Court

The First-Law Supreme Court Decision to Cut a Public Official’s Social Media Account in the Presence of a Personal Page, Including Parent Comments

The usually quite certain justices of the U.S. Supreme Court seemed to be uncertainly groping their way on Tuesday, as they sought to craft a new rule for dealing with the social media age.

The issue at the Supreme Court on Tuesday is how courts should evaluate these questions when they occur on a public official’s social media page. Most appeals courts have ruled that when public officials create an online place for public comments, the First Amendment’s freedom of speech prevents those officials from barring people whose comments they don’t like.

Two school board members in Poway were the first cases to be dealt with on Tuesday. They blocked two persistently critical parents from their social media pages, and the parents sued, contending the school officials had used their government authority to violate their First Amendment right of free speech.

Representing the school board members, lawyer Hashim Mooppan told the justices that the social media pages were extensions of the board members’ campaign pages and thus were purely personal because the state had no control over them.

That prompted Justice Samuel Alito to ask, “What if you showed a Facebook page to a thousand people and 999 of them would think that this is an official page? Under your test, that wouldn’t matter?”

That wasn’t good enough for Justice Kagan. “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” she said. “It was an important part of how he wielded his authority. It isn’t enough to cut a citizen off, you have to cut the way that government works.

School Board Business: Is Your Social Media Page Personal? A Comment on the Blocked School Board Criclists’ Defeasibility

Mooppan said these were not government social media pages. They were campaign pages. They were elected officials who had to run again. So what they were doing is what incumbent officials all over the country do as a regular matter. They talk to their constituents to show what a good job they’ve been doing and why they should be re-elected.” They do that on their personal social media pages.

School board members were asked if they devoted their pages to school business. Why doesn’t that transform their pages into a place where the public’s business is being done? Mooppan replied that the school business could be discussed in the backyards of the board members if they wanted to, or at a campaign event open only to fellow Republican or Democratic party members.

Justice Amy Coney Barrett followed up, observing, “I think it’s very difficult when you have an official who can in some sense define his own authority.” The law clerk could say this is the official business of the chambers and post things on their website.

Lawyer Mooppan replied, somewhat inscrutably, that “It becomes harder the higher up you go in the chain because it’s harder to identify a superior who can tell you what to do.”

Arguing the contrary position, on behalf of the blocked school board critics, lawyer Pamela Karlan contended that the parents were being denied access to important information about the public school system that is only available on the board members’ personal pages.

Justice Alito asked how blocking a critic from a social media page is different from a public official at the grocery store deflecting a critic by telling her to call his office.

Karlan said that when a public official is not on duty, they are not doing their job. “If they say they’re doing their job, it means that they are state actors, meaning that they’re using their authority and that their page isn’t strictly personal,” she said.

Karlan replied that there would be “no meritorious constitutional claim” the uninvited reporters would “have a right to come to your dinner … as opposed to you don’t allow people to show up at press briefings altogether.”

She contended that a public official, talking about public business, can’t kick constituents off of his or her social media page without violating the constituents’ first amendment rights.

The US Supreme Court is scheduled to hear arguments on Tuesday about the ability of public officials to have control over their personal social media pages.

But in the Port Huron case, the 6th U.S. Circuit Court of Appeals ruled that Freed’s Facebook page was personal, that he did not use his government authority to maintain it and that, therefore, he was not using his office to block Lindke. In short, he was not using the state’s authority to suppress Lindke’s speech.

Lindke says he started posting comments on Freed’s page at the start of the epidemic because he found information he couldn’t find elsewhere.

Kedem says that Freed was talking to the public as a city manager. Freed was “essentially performing his job by answering their questions about the services that the city was providing.”

Freed says that he is not an elected official and that his personal Facebook page dates back to his college years. The information he put on the Facebook page was already public through the communications office of the city, he said.

“Eighty percent of the posts are my personal family photos, pictures of my dog. I’m a foodie. … “I like to show pictures of places I go to eat.” It is “not uncommon” to have people with “mental health challenges” target public officials, Freed observes. But he had always considered his page personal and under his control. “If I hadn’t control it, I would never have posted pictures of my wife or little girls on this page.”

“This has been an ongoing issue with Mr. Freed as far as blocking people, deleting them. He’s been doing it for years and years. Lindke says he is the first person to challenge him on it.

Lindke has been involved in altercations with other public officials and was even carted out of a city council meeting. There are lots of difficult people who prevail in certain cases.

Local governments have commented on the cases at the Supreme Court. They are emphasizing the fact that government officials have First Amendment rights too, and want the justices to set out a clear standard that is easy to apply, so that local officials know what rules are and when they are liable.

The general counsel of the International Municipal Lawyers Association has a “authority test.” Does the local government own the social media account? Does it authorize or require creation of the account, and does the account utilize government resources?

Allon Kedem will argue in the Supreme Court on Tuesday that this isn’t enough. He says public officials can’t suppress speech of their critics when they use their office on social media.

“No city staff had access to my account. They never did anything to work on my account. In the Donald Trump case, the White House staff was posting on the page, but I ran it myself. White House staff on official federal devices had access to the page. There are some pretty differences in the keynote.

Lindke and the City Manager: Do they get a chance to talk with the Mayor? A Pedestrian Comment on Lindke’s Case

Kedem, Lindke’s lawyer, says those are distinctions without a difference — that the Lindke case and the Trump case are the same. The Lindke case is more important, he says.

“To a lot of Americans, the city manager is the one who makes the decisions that have the greatest impact on their lives and those of their family than the president,” Kedem says. People want a way to speak with the city manager. The question is do they get that chance.