Supreme Court justices expressed concern during oral arguments Tuesday about whether their rulings in a pair of social media blocking cases could have broad repercussions for elected officials communicating online.
The cases, which were brought against two California school board members and a Michigan city manager, focus on whether the government officials violated the First Amendment free speech rights of citizens whom they had blocked on their social media accounts.
That hinges on when a government official’s personal social media account becomes an official government account and should come with protections for access, and lower courts ruled differently in the two cases.
Across three hours of oral arguments Tuesday, the justices grappled with different ways to draw that line and wondered at the consequences it could have for government officials from the president down to local city councils.
The attorney for the school board members facing suit for blocking constituents, Hashim Mooppan, told the justices that just because a public official talks about what they’ve done on the job on their social media accounts, it doesn’t mean that should be considered a government account.
Mooppan argued a ruling otherwise could harm public officials’ ability to run for reelection. The school board members blocked the constituents on X, formerly known as Twitter, and Facebook.
“So what they were doing is what incumbent officials all over the country do as a regular matter. They talk to their constituents to show what a good job they’ve been doing and why they should be reelected,” Mooppan said.
Attorneys for the blocked constituents have argued that private accounts had the trappings of an official government account, including use of their official titles and government email addresses.
Pamela Karlan, attorney for the California plaintiffs, argued that the court should adopt a straightforward test: If a government official is “doing their job” on social media, it should be considered a government account for free speech purposes.
Justices Brett M. Kavanaugh and Samuel A. Alito, Jr. frequently raised concerns about how a ruling on the line between personal and government speech could impact elected officials.
“I mean, elected officials have told me they’re always on call. They’re always doing their job. They’re always being approached by constituents,” Alito said.
Kavanaugh also expressed some hesitance over the possible breadth of a ruling that could sweep in public officials discussing their own jobs.
“Defining doing your job as talking about your job is all-encompassing,” Kavanaugh said, and could leave little room for government officials to express themselves.
At one point Alito questioned whether the court could require elected officials to have explicitly separate official, personal and campaign social media profiles.
The cases could have substantial consequences for members of Congress, as the National Republican Senatorial Committee laid out in an amicus brief in the case.
The group argued that a ruling in the case could restrict congressional candidates’ ability to police their own political social media pages — similar to how courts have allowed candidates to remove disruptive people from their political events.
“Just as an incumbent candidate may hold a campaign rally that promotes his official accomplishments without transforming that event into state action, an incumbent candidate may also discuss his official acts on a non-government resourced social media page without that page becoming state action, either,” the brief states.
Administration position
The Biden administration, which sided with the public officials in both cases, argued that a government account becomes official when government resources are used to maintain it.
Marsha Hansford, who argued for the Biden administration in one of the cases, cautioned against a different standard.
“Just this idea that any time you’re having a conversation with the public, that becomes state action, I think, is a really dangerous idea,” Hansford said.
Justice Sonia Sotomayor and several other members of the court pushed back on the Biden administration’s stance.
As part of the arguments, Justice Elena Kagan pointed to former President Donald Trump’s use of his Twitter account while in office. Kagan said Trump frequently used the account to announce policy and cajole other parts of the government.
“It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works,” Kagan said.
At times the justices waxed philosophical about social media’s place in American politics and the court’s ability to grasp changing technology and social dynamics — an issue that has bubbled up in prior cases over social media.
“You know, it’s a big picture challenge about the nature of the world we live in and we’re going to live in. And the need for rules that are going to meet a world that we don’t really have any idea what it will look like,” Kagan said.
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