Can Government Officials Violate the First Amendment through Social Media?

By: Maddy Goldman

Edited by: isabella Canales and Grace Wu

Americans treasure their First Amendment right to free speech. The freedom to protest, act, speak, and dress in any manner has driven politics and social reform throughout history. However, with this immense amount of freedom comes an immense amount of debate. Should we place limitations on free speech? Who gets to set and enact these boundaries? The government? The people? These questions demonstrate a gray area in the First Amendment, where, in certain instances, it can become unclear how to deal with free speech or the potential restriction of it. 

However, another recent development has sparked a new debate on the question of free speech: the internet. With the creation of the internet and social media platforms like Facebook and Twitter, the gray area of the First Amendment grows. Does everyone have the right to publicly post their opinions online? Is there such a thing as a “private” account? What is the role of the government concerning free speech and social media? This last question has been brought to the forefront of the legal scene in recent times. 

Government-specific questions regarding free speech and social media have risen rapidly after various officials were sued for violating the First Amendment via their actions on Twitter and Facebook. Should officials post updates and promote themselves through it? Are they speaking as the government or their private self when they post, comment, or converse on social media? Does this difference matter? Can officials block their critics? Or is that an infringement of the First Amendment? 

Two exemplary cases that demonstrate the confusing connection between free speech, the government, the people, and social media are O'Connor-Ratcliff v. Garnier and Lindke v. Freed. In both cases, the plaintiff sued a government official for violating their First Amendment right to free speech. [1] Many of the aforementioned questions were brought up, and many were left unanswered. Ultimately, it is unclear how best to handle the issues which arise when social media, the government, and the question of free speech are intertwined. As demonstrated by the decisions and discussions surrounding O'Connor-Ratcliff v. Garnier and Lindke v. Freed, people are divided about whether an official’s social media account counts as an extension of their governmental role, or if it is simply a personal page unrelated to the government. [2]

O'Connor-Ratcliff v. Garnier occurred in October 2017 when Michelle O’Connor-Ratcliff and T.J. Zane blocked two of their main critics, Christopher and Kimberly Garnier, on social media. [3] O’Connor-Ratcliff and Zane were both trustees for the Poway Unified School District, which is classified as a governmental/official position. [4] They originally started their social media pages as a way to promote their campaigns; however, after being elected to the Board of Trustees, they transitioned their accounts to official ones. [5] They implemented new official titles and began to post news, business, and updates pertaining to the Poway Unified School District. [6] Parents such as Christopher and Kimberly Garnier, however, began voicing their concerns and criticisms regarding their children's schools in the replies of the trustees' Facebook and Twitter posts. [7] As the critique's intensity and insistence increased, Ratcliff and Zane began to first hide, and then delete negative comments on posts. [8] This meant the Garniers’ critiquing comments could no longer be seen or attached to the trustees’ posts. This also meant all future critiques from the Garniers were stopped. Consequently, the Garniers sued the trustees, claiming the trustees violated their First Amendment right to free speech. [9] The court decided that public officials could not, due to the First Amendment, block individuals on their social media accounts. [10]

Another similar incident occurred in October 2023, in Lindke v. Freed. Similarly to Ratcliff and Zane, James Freed originally created a private account, where he posted for his friends and family. [11] However, as time passed he amassed over 5,000 followers, forcing him to convert his account to a public profile. [12] He was soon elected as city manager for Port Huron, Michigan, subsequently changing his profile to show his official name and title. [13] On this page, Freed posted both personal and professional updates, the latter of which included news on topics such as city policies. [14, 15] People, such as Kevin Lindke, also began to post critical thoughts in regard to Freed’s various policies. [16]He was specifically upset about Freed’s policies surrounding COVID-19. [17] Freed began to delete or hide Lindke’s critical comments. [18] Ultimately, Freed blocked Lindke from his social media pages. [19] Thus, similarly to O'Connor-Ratcliff v. Garnier, the plaintiff, Lindke, sued Freed, claiming his First Amendment rights to free speech were being violated. [20] The lower and Sixth Circuit courts dismissed Lindke’s Case. However, Lindke's petition for certiorari was granted by the Supreme Court, and the case will be viewed again on April 24, 2023. [21]

In both of these cases, the plaintiffs argued that the official was acting in the name of the government, and thus was restricting free speech by preventing them from voicing their opinions on a public platform. Lindke and Garner both sued under 42 U.S.C. § 1983, which states: 

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. [22, 23] 

Despite arguing similar concepts, neither of these cases have led to a clear conclusion on what role the government and social media hold in free speech and vice versa. The main issue regarding this topic is “whether government officials are even acting in their government capacities–that is, taking ‘state action’–when they curate their social media profiles.” [24] This question divided and puzzled the Court. If the officials were acting privately, then their act of blocking critics should not violate the First Amendment. However, the same is not true if they were acting as a governmental authority. 

Using the above logic, in O'Connor-Ratcliff v. Garnier, the trustees were found to have violated the First Amendment since the trustees were deemed to be acting in the name of the government. [25] Meanwhile, in Lindke v. Freed, the court granted summary judgment to Freed, meaning Freed’s Facebook page did not count as governmental or state action. [26] Hence, according to the court, he did not violate the First Amendment. The different ruling in these two cases clearly outlines the gray area mentioned earlier. 

 Thus, many questions remain unanswered. Even if it is decided that an official blocking a critic on social media violates the First Amendment only if the official is acting in the name of the government, it is still unclear how to determine for whom the official is acting. Do we base it on their account’s name? In both O'Connor-Ratcliff v. Garnier and Lindke v. Freed, the officials updated their account names to their official titles. Should we take into account the content posted? Freed had more personal posts, while O’Connor-Ratcliff had more political and official posts. [26] Could this difference in intent of the page be the reason one official was deemed to have violated the law, while the other was not? Even after a thorough examination of two key cases, the realm of free speech on social media remains largely debated and complex. 

Notes:

1.  Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/.  

2. Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/.  

3. "O'Connor-Ratcliff v. Garnier." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-324.

4. "O'Connor-Ratcliff v. Garnier." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-324.

5. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/.  

6. Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/.  

7. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

8. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

9. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

10.  Howe, Amy. “Justices Consider Liability for Officials Who Block Critics on Social Media.” SCOTUSblog, November 1, 2023, https://www.scotusblog.com/2023/10/justices-consider-liability-for-officials-who-block-critics-on-social-media/.  

11.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611.  

12.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

13.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

14.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

15. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

16. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

17. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

18.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

19.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

20. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

21. “Lindke v. Freed.” Legal Information Institute. Accessed February 13, 2024, https://www.law.cornell.edu/supct/cert/22-611

22.  "Lindke v. Freed." Oyez. Accessed November 16, 2023, https://www.oyez.org/cases/2023/22-611. 

23.  “42 U.S. Code § 1983 - Civil Action for Deprivation of Rights.” Legal Information Institute. Accessed November 16, 2023, https://www.law.cornell.edu/uscode/text/42/1983.  

24.  “O’Connor-Ratcliff v. Garnier and Lindke v. Freed.” American Civil Liberties Union, September 19, 2023, https://www.aclu.org/cases/oconnor-ratcliff-v-garnier-and-lindke-v-freed. 

25. “Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023, https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

26.  No. 22-611 I T Supreme Court of the United States. Accessed November 16, 2023, https://www.supremecourt.gov/DocketPDF/22/22-611/270233/20230630161427317_Amicus%20-%20ASU%20Law%20-%20Lindke%20v%20Freed%20-%20No%2022-611.pdf. 

27. Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/. 

Bibliography:

“42 U.S. Code § 1983 - Civil Action for Deprivation of Rights.” Legal Information Institute. Accessed November 16, 2023. https://www.law.cornell.edu/uscode/text/42/1983. 

“Garnier v. O’Connor-Ratcliff.” Harvard Law Review, March 24, 2023. https://harvardlawreview.org/print/vol-136/garnier-v-oconnor-ratcliff/. 

Golde, Kalvis. “Lindke v. Freed.” SCOTUSblog. Accessed November 16, 2023. https://www.scotusblog.com/case-files/cases/lindke-v-freed/. 

Golde, Kalvis. “O’Connor-Ratcliff V. Garnier.” SCOTUSblog. Accessed November 16, 2023. https://www.scotusblog.com/case-files/cases/oconnor-ratcliff-v-garnier/. 

Howe, Amy. “Justices Consider Liability for Officials Who Block Critics on Social Media.” SCOTUSblog, November 1, 2023. https://www.scotusblog.com/2023/10/justices-consider-liability-for-officials-who-block-critics-on-social-media/. 

Howe, Amy. “Justices Weigh Rules for When Public Officials Can Block Critics on Social Media.” SCOTUSblog, November 3, 2023. https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/. 

Jennifer Stisa Granick, Vera Eidelman. “The Supreme Court Will Set an Important Precedent for Free Speech Online: ACLU.” American Civil Liberties Union, October 19, 2023. https://www.aclu.org/news/privacy-technology/the-supreme-court-will-set-an-important-precedent-for-free-speech-online. 

"Lindke v. Freed." Oyez. Accessed November 16, 2023. https://www.oyez.org/cases/2023/22-611  

“Lindke v. Freed.” Legal Information Institute. Accessed February 13, 2024, https://www.law.cornell.edu/supct/cert/22-611

No. 22-611 I T Supreme Court of the United States. Accessed November 16, 2023. https://www.supremecourt.gov/DocketPDF/22/22-611/270233/20230630161427317_Amicus%20-%20ASU%20Law%20-%20Lindke%20v%20Freed%20-%20No%2022-611.pdf. 

“O’Connor-Ratcliff v. Garnier and Lindke v. Freed.” American Civil Liberties Union, September 19, 2023. https://www.aclu.org/cases/oconnor-ratcliff-v-garnier-and-lindke-v-freed. 

"O'Connor-Ratcliff v. Garnier." Oyez. Accessed November 16, 2023. https://www.oyez.org/cases/2023/22-324.