Lindke v. Freed and O’Connor-Ratcliff v. Garnier: An Uncertain Future for Public Official-Constituent Engagement via Social Media

By: Pavan Acharya

Edited by: Jonathan Perkins and Grace Wu

In recent years, the Supreme Court has heard a variety of cases related to social media,  particularly those involving potential violations of First Amendment free speech protections. 

This term alone, the High Court has already heard at least three cases involving social media, including two related to state regulation of various platforms. [1] However, depending on the justices’ rulings, two other cases could have much different effects on the way public officials communicate with their constituents. In Lindke v. Freed and O’Connor-Ratcliff v. Garnier, both of which the Supreme Court heard in late October, the Supreme Court will decide whether a public official’s social media activity is an example of state action subject to the First Amendment. [2] 

The subject of Lindke is the social media account of John Freed, the city manager of Port Huron, Michigan — a small city with a population of around 29,000. [3] Freed has operated a private Facebook account since he was in college. However, after the account grew too popular, he turned it into a “page” so anyone could follow him there. When he was appointed city manager in 2014, Freed updated his page to reflect the new title. [4] In 2020, a resident named Kevin Lindke commented on one of Freed’s posts, expressing discontent with the city manager’s handling of the COVID-19 pandemic. Freed proceeded to delete the comment and block Lindke, who then sued Freed on the grounds that Freed had violated his First Amendment rights. Similarly, in O’Connor-Ratcliff, two pairs of parents were blocked from their District Board of Trustees Facebook page as a result of comments they left on the page. [5]

Both Lindke and O’Connor-Ratcliff, however, are not novel cases but rather follow in the footsteps of a similar — but now moot — litigation. A former case, commonly referred to as Trump v. Knight Institute, would have resolved the question of whether former President Donald Trump’s decision to block certain individuals from his personal Twitter account constituted a violation of their First Amendment rights. [6] In Trump, the government — who was the defendant — conceded that Trump blocked people from his Twitter account after they criticized either him or his administration’s policies. [7] As a result, the Second Circuit U.S. Court of Appeals ruled that Trump had engaged in “unconstitutional viewpoint discrimination” by blocking the users since his Twitter account constituted a “public forum.” Due to President Joe Biden’s election victory in 2020 and former President Trump’s ban from Twitter in early 2021, the Supreme Court ended the lawsuit in April 2021. Though the court did not hear the case or address its merits, Justice Clarence Thomas did provide his thoughts in a concurring opinion. [8] While Thomas wrote that digital platforms like Twitter provide “historically unprecedented amounts of speech, including by government actors,” he also warned that much of this speech could be regulated by private actors. [9]

While Lindke and O’Connor-Ratcliff involve a different social media platform than the Trump case, similar questions of private versus public control over speech may prevail. Additionally, regardless of the outcome, the justices’ ruling could have a significant impact on how public officials communicate with their constituents via social media moving forward. [10] Should the Court rule in favor of the private citizen in both cases, then public officials moving forward may feel more obligated to share information related to their official duties on public social media accounts. If the Court rules the opposite, then public officials may feel more encouraged to share important information related to their duties through unofficial channels, such as personal social media accounts. Based on the hearings for both cases held in October, it is unclear how the justices will rule, or what legal tests they may employ. [11] As these cases are some of the first of their kind to reach the nation’s highest court, it is still to be determined whether the final ruling will provide a set of specific ground rules for how public officials can interact with their constituents through private social media accounts. If the final rulings are open-ended and non-specific, the way public officials interact with everyday citizens via social media may change drastically in the near future.

Notes:

1. Brian Fung. “US Supreme Court Prepares to Hear Landmark Social Media Cases.” CNN, 25 Feb. 2024, www.cnn.com/2024/02/25/tech/us-supreme-court-landmark-social-media-cases/index.html. 

2. Lindke v. Freed. https://www.scotusblog.com/case-files/cases/lindke-v-freed/. Accessed 29 Feb. 2024.

3. Jeff Neal. “The Supreme Court Takes on (Anti)Social Media.” Harvard Law Today, 27 Oct. 2024, https://hls.harvard.edu/today/supreme-court-takes-on-social-media-in-lindke-v-freed-and-oconnor-ratcliff-v-garnier/.

4. “---.” Oyez, https://www.oyez.org/cases/2023/22-611. Accessed 29 Feb. 2024.

5. O’Connor-Ratcliff v. Garnier. Cornell Law School, https://www.law.cornell.edu/supct/cert/22-324. Accessed 29 Feb. 2024.

6. “Knight Institute v. Trump.” Knight First Amendment Institute at Columbia University, https://knightcolumbia.org/cases/knight-institute-v-trump. Accessed 29 Feb. 2024.

7. Naomi R. Buchwald. Knight First Amendment Institute at Columbia University v. Trump, No. 18-1691 (2d Cir. 2019). 9 July 2019, https://law.justia.com/cases/federal/appellate-courts/ca2/18-1691/18-1691-2019-07-09.html.

8. “Supreme Court Ends Long-Running Lawsuit Over Trump’s Now-Defunct Twitter Account.” Knight First Amendment Institute at Columbia University, 5 Apr. 2021, https://knightcolumbia.org/content/supreme-court-ends-long-running-lawsuit-over-trumps-now-defunct-twitter-account.

9. Clarence Thomas. Biden v. Knight First Amendment Institute at Columbia University. 5 Apr. 2021, https://www.supremecourt.gov/opinions/20pdf/20-197_5ie6.pdf.

10. Olivia B. Hoff, et al. “Supreme Court Grants Cert in Lindke and O’Connor-Ratcliff.” Lawfare, 24 May 2023, https://www.lawfaremedia.org/article/supreme-court-grants-cert-in-lindke-and-o-connor-ratcliff.

11. Ian Millhiser. “The Supreme Court Seems Stumped by Two Cases about Free Speech Online.” Vox, 31 Oct. 2023, https://www.vox.com/scotus/2023/10/31/23940738/supreme-court-twitter-facebook-oconnor-ratcliff-garnier-lindke-freed-first-amendment.

Bibliography:

Buchwald, Naomi R. Knight First Amendment Institute at Columbia University v. Trump, No. 18-1691 (2d Cir. 2019). 9 July 2019, https://law.justia.com/cases/federal/appellate-courts/ca2/18-1691/18-1691-2019-07-09.html.

Fung, Brian. “US Supreme Court Prepares to Hear Landmark Social Media Cases.” CNN, 25 Feb. 2024, www.cnn.com/2024/02/25/tech/us-supreme-court-landmark-social-media-cases/index.html. 

Hoff, Olivia B., et al. “Supreme Court Grants Cert in Lindke and O’Connor-Ratcliff.” Lawfare, 24 May 2023, https://www.lawfaremedia.org/article/supreme-court-grants-cert-in-lindke-and-o-connor-ratcliff.

“Knight Institute v. Trump.” Knight First Amendment Institute at Columbia University, https://knightcolumbia.org/cases/knight-institute-v-trump. Accessed 29 Feb. 2024.

Lindke v. Freed. https://www.scotusblog.com/case-files/cases/lindke-v-freed/. Accessed 29 Feb. 2024.

“---.” Oyez, https://www.oyez.org/cases/2023/22-611. Accessed 29 Feb. 2024.

Millhiser, Ian. “The Supreme Court Seems Stumped by Two Cases about Free Speech Online.” Vox, 31 Oct. 2023, https://www.vox.com/scotus/2023/10/31/23940738/supreme-court-twitter-facebook-oconnor-ratcliff-garnier-lindke-freed-first-amendment.

Neal, Jeff. “The Supreme Court Takes on (Anti)Social Media.” Harvard Law Today, 27 Oct. 2024, https://hls.harvard.edu/today/supreme-court-takes-on-social-media-in-lindke-v-freed-and-oconnor-ratcliff-v-garnier/.

O’Connor-Ratcliff v. Garnier. Cornell Law School, https://www.law.cornell.edu/supct/cert/22-324. Accessed 29 Feb. 2024.

“Supreme Court Ends Long-Running Lawsuit Over Trump’s Now-Defunct Twitter Account.” Knight First Amendment Institute at Columbia University, 5 Apr. 2021, https://knightcolumbia.org/content/supreme-court-ends-long-running-lawsuit-over-trumps-now-defunct-twitter-account.

Thomas, Clarence. Biden v. Knight First Amendment Institute at Columbia University. 5 Apr. 2021, https://www.supremecourt.gov/opinions/20pdf/20-197_5ie6.pdf.