Government Officials Can Violate First Amendment By Blocking Critics, SCOTUS Says

Former President Donald Trump has blocked critics on social media, as have members of Congress, city managers, school board officials and other office holders throughout the country.

Dozens of social media users who found themselves blocked responded by suing, claiming their First Amendment rights were violated.

Judges in different parts of the country have reached different conclusions in these cases. In what was probably the most famous case, federal appellate judges in New York ruled 7-2 that Trump ran afoul of the First Amendment by blocking critics on Twitter (now X) because he used his account in an official capacity. For instance, the judges said, he used the @realDonaldTrump account to announce new policies and cabinet changes.

But other judges have sided with politicians. In Colorado, for instance, a district court judge said Republican Rep. Lauren Boebert didn't violate the First Amendment by blocking a critic on Twitter because the @laurenboebert account was “held out and operated as a personal and campaign account.”

On Friday, the Supreme Court weighed in, issuing opinions in two separate battles over public officials' use of social media. But the rulings didn't actually resolve either case.

Instead, the court unanimously held that a public official can violate critics' rights by blocking them on social media, or by deleting their comments, but only under certain circumstances.

Specifically, the official must have “actual authority to speak on behalf of the state on a particular matter,” and also must purport “ to exercise that authority in the relevant posts.”

Figuring out whether those circumstances are met can require a “fact-specific undertaking in which the post’s content and function are the most important considerations,” Justice Amy Coney Barrett wrote for the court.

“In some circumstances, the post’s content and function might make the plaintiff ’s argument a slam dunk,” Barrett wrote.

For instance, she said, if a city mayor announced exclusively on his Facebook page that he was suspending a parking rule, that post would amount to governmental action.

On the other hand, if the same mayor “merely repeats or shares otherwise available information,” such as by linking to a parking announcement on the city's website, he is likely engaging in “private speech,” she wrote.

The upshot is that trial judges must now analyze specific posts by politicians before determining whether they violated the First Amendment by blocking people who responded, or by deleting critical comments.

It's not at all clear how judges will apply Friday's decision.

Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University -- which sued Trump over his social media blocks -- stated Friday that the group hopes courts “will be mindful of the importance of protecting speech and dissent in these digital public forums.”

Santa Clara University professor Eric Goldman, who has followed these battles for years, adds that it's too soon to know what kinds of facts will sway judges' decisions.

“I don't think we're going to know for years,” he says.

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