Ludington and Martin discuss Supreme Court cases on social media blocking by public officials
First Amendment Clinic Director Sarah Ludington and Supervising Attorney Amanda Martin talk about the issues raised in two Supreme Court cases involving social media blocking by public officials.
On Oct. 31, the Supreme Court heard oral arguments in two cases involving whether public officials are engaging in state action when they block people from their social media accounts, thereby violating their First Amendment rights.
In O’Connor-Ratcliff v. Garnier, the Ninth Circuit Court of Appeals held that two California school board members “acted under the color of state law” when they blocked parents who posted critical comments on their social media pages. But in Lindke v. Freed, the Sixth Circuit ruled that a city manager in Michigan was not acting in an official capacity when he blocked a user on Facebook. The two cases reflect a general split across five circuits in this relatively new body of case law.
Duke Law First Amendment Clinic Director Sarah Ludington JD/MA ’92 and Supervising Attorney Amanda Martin say complaints about selective social media blocking are becoming more common among potential clients who reach out to the clinic for legal help. They include a Hope Mills, North Carolina, resident who was blocked from the mayor’s Facebook page, which the mayor was using for town business, after posting an opposing view on development plans.
That case, which ended in a settlement, was included in an amicus brief filed in Lindke v. Freed by Ludington, Martin, and Local News Fellow Kyle Compton, along with clinics from the law schools at Arizona State University, the University of Illinois, Southern Methodist University, Tulane University, and Vanderbilt University.
In September 2022 Ludington, Lauren Smith '21, and Christian Bale '21 also wrote an essay on the issues titled "How Social Media Platforms Can Promote Compliance with the First Amendment" for the Law Review Forum of New York University Law Review.
Ludington and Martin spoke on the cases before the Court and gave their reaction to the oral arguments.
There have been complaints about selective blocking by local officials all the way up to former president Donald Trump. Why is it so problematic when public officials block people from their social media pages? Aren’t there other ways people can communicate with them?
As the Supreme Court recognized in Packingham v. North Carolina, social media websites like Facebook and Twitter are, for many, “the principal sources for knowing current events” and “speaking and listening in the modern public square.” They “provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.”
Such behavior by public officials effectively creates two classes of citizens — those who can communicate easily with them through social media and those who cannot. This stratification of access is anathema to the First Amendment, which is premised on the notion that the free exchange of information, ideas, and opinions is crucial to our system of democratic self-governance.
Social media serves four critical values in the modern free speech context: access, interaction, discourse, and the public record. First, the public relies on access to social media pages to obtain information about events and services relevant to their daily lives. Second, public social media pages facilitate direct communications between citizens and government officials. Third, social media facilitates discourse among citizens and engagement with public issues.
Finally, social media pages function as a repository of information about the actions of government agencies and officials. Across the country, nearly twenty-five percent of all newspapers that existed in 2004 have disappeared. People who live in these “news deserts” rely almost entirely on social media to learn about the policies and activities of their local officials. Being blocked from this source of information impairs the ability of constituents to follow local politics and express their views on important issues, fundamentally undermining our democracy.
What constraints does the First Amendment impose on public officials’ social media pages, and how do courts evaluate the constitutionality of their conduct?
The place to start is the First Amendment’s public forum doctrine. This is the framework that courts use to determine if and how the government can regulate speech on government property, virtual or otherwise.
The first category is traditional public forums. These are locations that have traditionally been devoted to assembly and debate, such as streets and parks. They enjoy the strongest First Amendment protections: the government may bar neither certain perspectives nor whole topics of conversation. At most, the government can impose time, place, and manner limitations, such as those designed to protect public safety or reasonable limits on sound amplification.
On the other end of the spectrum are nonpublic forums. This category covers property that lacks a free speech tradition and has not been designated by the government as a space for speech and expressive conduct. In these forums, like military bases or airport terminals, the government’s right to control speech is akin to that of an owner of private property.
The last category, and the one most relevant to social media platforms, is that of “designated public forums.” These are forums that, while not traditionally and historically open to the public, have been designated as open to speech. For example, they include the public comment segment of a meeting held by a county commission or school board. A government body can impose neutral limitations on speech in these forums, such as requiring the public to sign up in advance or limiting the amount of time during which they can speak. And it can even impose some subject-matter limitations, such as limiting topics of discussion to those listed on a meeting agenda. But as in traditional public forums, subject-matter, or content-based, restrictions in designated public forums are suspect: restrictions must be “narrowly drawn to effectuate a compelling state interest.” And, as is true for all government property, viewpoint discrimination is strictly prohibited.
What is your reaction to the oral arguments? Do you sense a majority is leaning in a particular direction?
The justices engaged in about three hours of lively debate on the two cases at issue. Our amicus brief made the point that this is a non-partisan issue – social media blocking occurs at all levels of government, from public officials and against citizens regardless of political affiliation. And the justices seem to understand the non-partisan nature of this issue – they did not appear to be aligned along conservative or liberal leanings. Instead, the justices were grappling with the difficulty of crafting a rule that will be clear, easy to administer, and honor the free speech interests on both sides of the issues. Public officials have free speech rights, but they need to be balanced with the public’s strong First Amendment rights in participating in the social media sites of their elected representatives. I was encouraged by the seriousness and energy that the justices brought to the task.
What guidelines do you hope the Court will issue to give public officials clarity on citizens’ First Amendment rights online and their responsibilities?
In our amicus brief, we argued that the free speech rights implicated by social media blocking require the protection of a test that presumes a public right of access to social media sites that provide important government information and facilitate participation in public discourse. So we propose a model for social media blocking cases that is based on the Supreme Court’s test for access to judicial proceedings.
There should be a rebuttable presumption of public access to social media accounts operated by public officials and government entities. The presumption can be overcome only if the public official or entity can demonstrate either that the social media account is an exclusively private account, or there is a compelling interest that justifies restriction of access to the social media account and the limited restriction is narrowly tailored to achieve that interest. A permanent ban should never be permitted from any account that is not exclusively private.
The primary benefit of a rebuttable presumption of access is to establish a definite standard that promotes judicial efficiency, reduces the cost of litigation, and provides an incentive for public officials and entities to separate their private and public accounts. Also, using a rebuttable presumption of access simplifies litigation, promotes First Amendment values, and discourages bad faith actors from using the threat of costly litigation to silence dissenters.
What about the platforms themselves? What policies should social media companies implement to help public officials comply with constituents’ First Amendment rights?
There are several proposals that Facebook and other social media platforms should consider to increase transparency and accountability for public officials online.
One, Facebook should notify individuals who have been blocked or removed from a public page. This would enable users to take prompt action to reinstate their access to the page if they were wrongfully removed. Likewise, individuals whose comments are hidden or deleted from a post on a public page should be notified. Currently, it is difficult to know when comments have been hidden because the commenter and her friends, but no one else, can still see the comment on the page.
Two, Facebook should simplify the options for administrators of public pages, allowing them to toggle comments on or off for all users and making those controls consistent, whether accessed through a browser or a mobile app. While the clinic prefers that officials allow comments in order to maximize speech and interaction with government officials, if an official prefers to not create a public forum for comments on her page, turning off commenting ability should be made simpler so that officials do not need to use workarounds like extensive word filters.
Three, Facebook and other social media platforms should adopt features that increase the transparency of public pages, such as revealing the settings chosen by the administrators. Currently, it is extremely difficult for users to assemble evidence that they have been removed from a page or that their comments have been hidden and/or deleted. Instead, they are forced to engage in constant monitoring of the page, take multiple screenshots, or even create additional accounts that allow them to interact with pages after they have been blocked.
Finally, Facebook and other social media platforms should maintain more detailed records about the administration of pages, so that this data is available upon request. Recorded data should include a historical record of users who have been blocked (and unblocked) or removed, and a record of the content of posts and comments that have been deleted or hidden, all of which should also have the relevant timestamps. A similar log should also be created to track historic setting selections for interactive features. Currently, a download of a Facebook page reveals the current setting options, but it does not maintain a history of previous settings. This makes it easy for page administrators to simply unblock a user upon request, and re-block that user at a future time, without leaving an easily accessible data trail.