The U.S. Supreme Court has concluded that public officials may be held liable under the First Amendment when they block social media comments by the public. The key question is whether the officials’ posts constitute government business or are simply personal comments on public affairs.
The Court’s decision came in two cases: In O’Connor-Ratcliff v. Garnier, the issue was whether school board members violated the First Amendment in blocking parents from their board-related Twitter and Facebook accounts. In Lindke v. Freed, the issue was whether a city manager could block a constituent from his personal Facebook page.
Four takeaways from the Supreme Court’s ruling:
- New guidelines: The Supreme Court concluded that a public official violates the First Amendment if he “possessed actual authority to speak on the State’s behalf, and purported to exercise that authority when he spoke on social media,” according to the unanimous decision written by Justice Amy Coney Barrett. In other words, was the post actually government business and was this post part of the official’s job?
- Public officials have their own free-speech rights: The Court emphasized that government employees have a personal right to comment about matters involving their profession. Unless the post meets the requirements outlined by the Court, officials can freely block constituents’ comments.
- A sticking point in the Court’s decision: In assessing whether an official’s post is a government announcement and not a personal one, the Court suggested examining whether the information is available elsewhere. Clearly, the justices haven’t spent a lot of time in city halls. Municipal information is everywhere: in minutes of public meetings, in legal ads, on little-visited websites and in many more locations. That information is rarely visible, though, unless reported by journalists, issued in press releases or announced by public officials. This part of the Court’s test is not going to prove helpful.
- Keeping the personal and public separate: Smart public officials will have separate Facebook accounts for personal and professional purposes. The Supreme Court emphasized that deciding whether there’s a First Amendment violation may require a case-by-case, post-by-post examination. Public officials can save themselves – and the courts – time and trouble by maintaining separate accounts and keeping the content distinct.
Ken Paulson is the director of the Free Speech Center, a professor at Middle Tennessee State University and a former editor of USA TODAY.
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