April 26, 2023

By Marcus E. Martinez

On April 24, 2023, the United States Supreme Court announced that it would hear two cases to decide whether a public official violates the First Amendment by blocking critics from commenting on their social media accounts.  In Garnier v. O’Connor-Ratcliff, two members of a California school district board blocked critical members of the public from their Facebook and Twitter accounts.  Likewise, in Lindke v. Freed, the City Manager of Port Huron, Michigan, blocked a resident from his Facebook account and deleted criticisms posted to the Facebook page.  Central to the issue is whether a public official’s use of a personal social media account constitutes state action and thus potentially subject to First Amendment limitations. Currently, there is conflict among federal appellate courts on the legal test used to make this determination.

The Supreme Court analyzed a similar issue in 2019 in the case of Trump v. Knight First Amendment Institute, in which former President Trump was accused of violating the freedom of speech rights of members of the public when he blocked them from his personal Twitter account.  There, a federal court ruled that the former President’s personal Twitter page constituted a public forum because it solicited communication with the public.  That case was vacated by Biden v. Knight First Amendment Institute, on the grounds of mootness, when Twitter disabled the former President’s account.

The Supreme Court will hear arguments on the two cases after it returns from its summer break in October.  We will continue to track these cases as they develop.  In the meantime, please contact any Elrod Friedman attorney with questions on this issue.