Home » Featured » Upcoming First Amendment cases in the U.S. Supreme Court

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 begins 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.


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.

Heard, not yet decided

Vidal v. Elster. Heard in oral arguments Nov. 1, 2023. This case arose after a Patent and Trademark Office examiner declined an application by Steve Elster to register the phrase “TRUMP TOO SMALL” to be used on items like t-shirts as political commentary on then-President Donald Trump and his policies. The decision was upheld by the U.S. Court of Appeals for the Federal Circuit based on federal law which prohibits registering a mark that identifies a living individual without their consent. The Supreme Court will consider whether the federal law violates the free speech clause of the First Amendment when the mark criticizes a public or government official or whether it is a reasonable restriction protecting individual and consumer rights.

NetChoice LLC v. Paxton and Moody v. Netchoice LLC. Heard in oral arguments Feb. 26, 2024. In these two cases, the Supreme Court will consider the constitutionality of Texas and Florida laws that seek to regulate how large social media companies like Facebook and X (formerly, Twitter) moderate content on their sites. The 5th Circuit Court of Appeals upheld Texas’ law in the Paxton case. However, the 11th Circuit Court of Appeals blocked Florida from enforcing most of its law. The companies contend that the state laws violate their First Amendment rights to moderate content on their sites as they wish without government interference. The states say that their regulations are needed to prevent the large social media companies from censoring certain viewpoints, such as Republican viewpoints. The cases have not yet been scheduled for oral argument, but the briefing schedule lasts through mid-January.

Murthy v. Missouri. Heard in oral arguments on March 18, 2024. The Supreme Court agreed to hear a case stemming from a claim that high-level federal government officials engaged in a coordinated campaign to suppress disfavored views by pressuring social media companies to degrade or remove posts and stories, some about the COVID-19 pandemic. A Louisiana federal judge issued an injunction to stop such actions by federal officials and agencies, including the U.S. Surgeon General and the FBI, which was largely upheld by the 5th U.S. Circuit Court of Appeals. On Oct. 20, the U.S. Supreme Court stayed the injunction and agreed to hear the questions presented in the petition later in its term, likely in the spring of 2024. The federal government argued that while the FBI, Surgeon General and members of the Biden administration urged social media platforms to remove content, such as misinformation about COVID-19 and disinformation from foreign actors, they did not threaten adverse action against the companies if they refused. Sometimes the social media companies disagreed and did not act on the government’s requests. The federal government argued that its communications to persuade did not turn the social media companies into state actors who would then be held to First Amendment free speech standards. In granting the stay and the petition, Justice Samuel Alito in dissenting remarks joined by justices Clarence Thomas and Neil Gorsuch said he feared that the court’s action “will be seen by some as giving the Government a green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news.”

National Rifle Association of America v. Vullo. Heard in oral arguments on March 18, 2024. In this case, the Supreme Court will consider whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. The case arose after the 2018 shooting at a high school in Parkland, Florida, that killed 14 students and three staff members. After the shooting, Maria T. Vullo, then a superintendent of the New York State Department of Financial Services, told banks and insurance companies in New York that they should consider whether they wanted to provide services to the NRA. A panel for the 2nd U.S. Circuit Court of Appeals ruled that while government officials may not “use their regulatory powers to coerce individuals or entities into refraining from protected speech,” they do “have a right — indeed, a duty — to address issues of public concern.”

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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