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The Supreme Court issued two unanimous decisions Friday on the issue that has confounded all levels of government. The question is: When does a public official, elected or not, violate the First Amendment by blocking critics from their personal social media pages?
In Michigan and California, outraged citizens sued public officials who committed such acts. In one case, two local elected school board members in Poway, California, blocked persistently critical parents from their social media pages. And in Port Huron, Michigan, a local horsefly sued unelected City Manager James Freed after being blocked from Freed’s Facebook page.
Abu and the city manager have very different views on reality.
Gadfly Kevin Lindke claimed the Freed City Administrator violated his right to speak by preventing him from responding to comments he made on the Freed City page about COVID-19 policies and other issues.
“Mr. Fried … was giving policy direction,” Lindke said. “He had issued a press statement and that was the only place the information was passed on to the community.”
Freed, the city manager, said that was simply not true and that he answered voters’ questions and directed them to press releases and other sites for local information. However, he says, “80% of the posts are personal photos of my family and my dog.” “If I had thought for even a second that this page was public and not under my control, I would never have posted photos of my young daughters or my wife.”
The Supreme Court did not decide who was right in this dispute. However, it established guidelines for lower courts to use when evaluating the facts.
Justice Amy Coney Barrett wrote for the court that “posts that expressly invoke a state’s authority to make announcements not available elsewhere are official,” and the public has the right to comment on them. He said there is. However, “posts that simply repeat or share available information are likely to be personal,” and page owners may be able to block critical or unwelcome comments. be.
Still, she said evaluating “obscure pages” like Freed is a fact-specific effort, with the “content” of the posts being the most important consideration.
Will all this clarify the rules of the road in such disputes?
Maybe yes, but probably not.
“I think that’s what happened,” said Amanda Karas, executive director of the International District Attorneys Association. “I think it’s clearer now than it was before.” She then pointed to various details in the court’s opinion, saying, “Judge Barrett said in the opinion that the views expressed here are my own. , saying that if they put a disclaimer that this is a personal page…that would be fine.” There’s a long way to go before “supporting the idea that this is a personal account.”
But Katie Farrow, senior adviser at Columbia University’s Knight First Amendment Institute, is less optimistic.
“I think they tried to create a simpler test,” she says. But she added that it remains to be seen how effective the new test will be, especially when public servants mix personal and official content on their pages.
Her advice for public servants is simple: “Keep two accounts. Keep the personal one personal and the official one official.”
If all of this sounds familiar, it’s because when Donald Trump was president, he used a personal Twitter account to communicate with the public and blocked his critics. Before he left office, two federal appeals courts ruled that this was illegal.
Friday’s ruling was the first of several social media disputes the court is hearing this term. In February, the court heard two cases testing state laws that prohibit social media companies from removing posts based on views expressed. And next Monday, the court will hear arguments in a case examining whether Biden administration officials can be barred from contacting social media companies about online information they deem false and dangerous.