The U.S. Supreme Court ruled on Friday that public officials who post work and policy messages on their personal social media accounts are using those accounts for official business, and thus may be held liable if they block critics on those accounts. But the decision is not final: Instead, there’s a new test that the high court wants lower courts to consider.
There were two decisions on the same basic issue, but having been appealed to the Supreme Court though two different appeals courts.
One was the California case of O’Connor-Ratclif v. Garnier, in which the Ninth Circuit Court of Appeals had ruled that school board members who blocked annoying parents from personal Facebook and Twitter accounts had violated the constituents’ First Amendment rights, because the elected officials were using their personal accounts to speak about the school board’s work.
In the other case, Lindke v. Freed, the Sixth Circuit Court of Appeals ruled that the Port Huron, Michigan’s city manager was not violating a citizen’s First Amendment rights when blocking someone from his personal page, even though he, too, used his personal page to comment on city business.
The high court agreed unanimously to send the Lindke v. Freed case back to the Sixth Circuit for reconsideration. Justice Amy Coney Barrett, penning the decision, said it was a difficult decision, “especially in a case involving a state or local official who routinely interacts with the public … Freed did not relinquish his First Amendment rights when he became city manager.”
The court likewise sent the O’Connor-Ratcliff v. Garnier back to the Ninth Circuit for another look.
Both courts will be using the new Supreme Court test when reviewing their similar cases: Did the officials engage in governmental action on their personal social media pages if they had “actual authority to speak on behalf of the state on a particular matter” and “purported to exercise that authority in the relevant posts” that were at the center of the lawsuit.
Barrett also said, “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
This week in Anchorage, former Sen. Lora Reinbold was in court defending herself against an Alaskan who said she was blocked from her official Facebook page.
“Alaska State Senator Lora Reinbold is suppressing free speech,” said the lawsuit filed in 2021 by the Northern Justice Project on behalf of Bobbie McDow, who has criticized Reinbold, of Eagle River, for her stance against forced masking policies during the Covid pandemic. The nonjury trial was in the courtroom of Judge Thomas Matthews on Wednesday, Thursday, and Friday, with Reinbold acting as her own attorney in her defense.
In January, Matthews ruled in a similar case of Rep. Kevin McCabe of Big Lake, who had been sued by valley resident Mark Kelsey over being blocked from McCabe’s Facebook page.
On two of three counts, the judge ruled that McCabe was acting in his official capacity when he blocked Kelsey; he ruled that McCabe’s official page was a public forum. The third question — did McCabe discriminate against Kelsey’s point of view — will go to trial after the legislative session. Kelsey is also represented by the Northern Justice Project.
