Home » News analysis » First Amendment cases in the U.S. Supreme Court in October 2023 term

By Deborah Fisher, published on November 8, 2023

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The Supreme Court is set to hear cases involving First Amendment questions in its 2023-2024 term. First up are a pair of cases considering whether public officials violate the First Amendment when they block or delete critical comments on their social media accounts. Another pair of cases will examine the constitutionality of laws in Florida and Texas that seek to regulate large social media companies in how they moderate content on their sites.

The U.S. Supreme Court’s yearly term for hearing cases began the first Monday in October 2023. Following is a running list of First Amendment cases heard or decided by the court in this term and cases involving the First Amendment that the court has declined.

Decided

Lindke v. Freed and O’Connor-Ratcliff v. Garnier. On March 15, 2024, the Supreme Court set out a new test regarding government official use of social media accounts in Lindke v. Freed to determine when a public official engages in state, or governmental action, when deleting and blocking critics on social media.

The court explained that a government official engages in state action on social media if (1) he or she had “actual authority to speak on behalf of the State on a particular matter,” and (2) if he or she “purported to exercise that authority in the relevant posts.”

This case involved the online interaction between James R. Freed, the city manager of Port Huron, Michigan, and a citizen named Kevin Lindke. City manager Freed had a Facebook account that he used for both personal and public purposes. He often posted about his family life, but he also made job-related posts. Freed blocked Lindke when he criticized him and city government.

In its ruling, the Supreme Court remanded the case back to the 6th Circuit, which had determined that Freed did not operate the Facebook page as part of his official duties. The Supreme Court instructed the 6th Circuit to apply its new test. In addition to remanding the Freed case, the court also in a per curiam decision on the same day vacated a 9th Circuit Court ruling, remanding O’Connor-Ratcliff v. Garnier in light of its Lindke ruling. The O’Connor case had stemmed from two school board members in Southern California who used Twitter and Facebook to communicate with the public but blocked two parents who had posted criticisms.

Vidal v. Elster. In Vidal v. Elster, the Supreme Court in June 2024 upheld a “names clause” provision of the trademark law that allowed the Patent and Trademark Office examiner to deny an application by Steve Elster to register the phrase “Trump too small.” Elster wanted to use the phrase on items such as t-shirts as political commentary on then-President Donald Trump and his policies. The trademark law’s “name clause” prohibited registering a mark that identifies a living individual without their consent. Elster said his free speech rights were violated. Justice Clarence Thomas said that while the “name clause” was content-based, it was not subject to strict scrutiny review like most other content-based restrictions on speech because trademarks are different. He concluded that “a tradition of restricting the trademarking of names has coexisted with the First Amendment, and the names clause fits within that tradition.” 

National Rifle Association of America v. Vullo. In National Rifle Association v. Vullo (2024), the U.S. Supreme Court explained that a government official can violate the First Amendment by coercing or forcing third parties not to deal with a disfavored entity because the official disagrees with the viewpoints or messages of that entity.

The court unanimously ruled that the National Rifle Association (NRA) stated a plausible First Amendment claim when it alleged that Mario Vullo, the superintendent of the New York Department of Financial Services, pressured insurance companies and executives to cease dealing with the NRA or face governmental scrutiny. 

Moody v. NetChoice, LLC. In this case, the U.S. Supreme Court identified what it called “the relevant constitutional principles” involving governmental regulation of social media platforms.  The case was a consolidation of two cases involving constitutional challenges to 2021 laws in Florida and Texas. These state laws regulated the content moderation choices of social media platforms, such as Facebook and YouTube. The motivation for these laws was that the social media platforms often discriminated against conservative speakers and viewpoints. The Supreme Court vacated both decisions and remanded them back to the state courts to consider again, instructing the lower courts that it must not interfere with private actor speech, quoting a precedent that invalidated a law that interfered with a newspaper’s editorial discretion.

Murthy v. Missouri. The Supreme Court in Murthy v. Missouri dismissed claims that the federal government likely violated the First Amendment by pressuring social media companies to censor content. The Court concluded the lower courts had erred in extending standing to the parties who had not established an adequate case or injury.

Denied Review

North Carolina Farm Bureau v. People for the Ethical Treatment of Animals and Stein v. People for the Ethical Treatment of Animals. The Supreme Court denied review of the so-called ag-gag North Carolina law that had been blocked by the 4th U.S. Circuit Court of Appeals. The law was aimed at preventing undercover employees at farms and other workplaces from taking documents or recording video. It was largely targeted at undercover activists, such as those with People for Ethical Treatment of Animals, also known as PETA, in their work to expose unsafe, illegal or inhumane practices at farms. The 4th Circuit said the law violated First Amendment rights when the recordings were conducted as part of newsgathering.

Blakenship v. NBCUniversal. The Supreme Court denied review of a case challenging the heightened “actual malice” standard that public figures must prove to win a libel claim – that is, the publisher either knew the defamatory statements were false but published them anyway, or the publisher published the untrue statements “with reckless disregard of whether it was false or not.” The case involved a former coal executive, Don Blakenship, who served a year in prison after being convicted of conspiring to violate safety standards at a West Virginia mine before an explosion there that killed 29 men. Later, when Blakenship was running for a U.S. Senate seat, news media organizations labeled him a felon although his prison sentence was not long enough to qualify his offense as a felony. In the opinion denying review of the case, Justice Clarence Thomas reiterated his view that the “actual malice” standard established by the Supreme Court in New York Times Co. v. Sullivan should be reconsidered. But, Thomas said, because Blakenship’s case involved state law actual malice standards, he concurred in denying review.

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