At issue in each case is whether an office-holder who uses an online account to communicate with the public is acting as a government official, bound by constitutional guarantees of free speech, and, if so, how far the office-holder can go in excluding private citizens.
One case the court agreed to review was an appeal by two school board members in Poway ( San Diego County) who barred a husband and wife from the officials' Twitter and Facebook pages after numerous critical postings, and were found by lower courts to have violated the couple's rights. A lawyer for the board members told the Supreme Court that unless a social media platform amounts to "state action," the subscriber must remain free to decide who can have access.
That includes the liberty of individuals holding public office to control the manner in which they use their personal social media accounts to communicate with the public about their jobs and the work of government," attorney Hashim Mooppan said in urging the court to take up the case. He said the two officials have maintained their web pages "without any direction, funding, support, or other involvement by the District."
But Cory Briggs, lawyer for the Poway couple, told the court that one of the officials, T.J. Zane, now the school board president, had posted an online description of his page as the "the official page" for a board member "to promote public and private information."
"When government officials systematically interact with their constituents on social media, they are just as engaged in the duties of their job as when they hear that same feedback at an in-person meeting," said Briggs, whose clients, Christopher and Kimberly Garnier, attended Poway schools and are parents of current students.
The court agreed to review a ruling by the Ninth U.S. Circuit Court of Appeals in San Francisco last July that concluded the board members had violated the couple's rights and must allow access, and a contrary ruling in August by the Sixth U.S. Circuit Court of Appeals in Cincinnati, allowing a city manager to deny Facebook account access to a resident who had denounced the manager's COVID-19 policies. The cases will be argued in the term that begins in October, with a ruling due by mid-2024.
The ruling may also determine the outcome of a suit filed in December by Susan Dyer Reynolds, a conservative columnist and former editor of the Marina Times in San Francisco, against Supervisor Dean Preston for blocking the Marina Times in 2020 from the Twitter account he uses to communicate with constituents.
In the suit, her lawyers contended Preston's action was "substantially motivated by his dislike for the viewpoints Ms. Reynolds expressed," such as her criticism of his advocacy for reductions in funding for prisons and police.
In a statement Monday, Preston said he "disputes that claim as meritless," and noted he has "lots of critics online, none of whom have ever been blocked."
Preston has argued that he was responding to "a threat of physical harm to my family." He cited a June 2020 Twitter posting in which Reynolds asked him, "Do you have a child?" and tweeted later that day, "Hope he doesn't let them out at night by themselves after he gets rid of the entire SFPD and abolishes prisons." She punctuated the tweet with the hashtag #PrestonsPurge, which Preston interpreted as a threat to his family.
Similar claims were made against Trump, while in office, for blocking critics' access to his Twitter account, which had more than 50 million followers.
While private citizens generally have an unlimited right to admit and exclude whomever they choose from their social media platforms, federal courts ruled, in 2018 and 2019, that the Trump account was a "public forum," governed by First Amendment guarantees of free speech, because the president used it to communicate with the public about government policies. That means outsiders cannot be excluded because of their viewpoints, although they can be blocked for other reasons, such as the use of threats or profanity.
The Supreme Court cases are O'Connor-Ratcliff v. Garnier, No. 22-324, and Lindke v. Fried, No. 22-611.
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