Our current, staunchly conservative and largely older Supreme Court is going to show the world how much they understand about social media next term, taking up a case about who can block whom on social media.
You may recall that Donald Trump was sued, while he was president, by the Knight First Amendment Institute at Columbia University on behalf of individuals who had been blocked by Trump on Twitter. The argument was that, as an elected figure, Trump had a duty to allow everyone to see his tweets and comment on them, otherwise it constituted a First Amendment violation.
SCOTUS punted that case in April 2021, taking the easy out because, with Trump no longer in office, it was now "moot."
But the issue of what constitutes a First Amendment violation when it comes to blocking others on Twitter and other platforms did not go away, and as the New York Times reports, the court has decided to take up two cases involving low-profile public officials — one case involves the Facebook and Twitter accounts of two members of the Poway Unified School District in San Diego; the other involves a city manager in Michigan who was using Facebook to talk about his city's efforts to protect residents against COVID-19, early in the pandemic.
The question before the court, as the Times explains, is whether the elected or public officials were engaging in "state action" on social media, or acting as private citizens. If they decide it was the former, that would be protected by the First Amendment, and blocking critics on social media could be seen as unconstitutional.
A three-judge panel of the Ninth Circuit already found in favor of the parents who sued the Poway school district officials in 2017, saying that "When state actors enter that virtual world and invoke their government status to create a forum for such expression, the First Amendment enters with them."
The Michigan case, involving Port Huron City Manager James R. Freed, was decided in the opposite direction, with a three-judge panel of the Sixth Circuit deciding that Freed was using his Facebook account as a private citizen, and "did not operate his page to fulfill any actual or apparent duty of his office." Freed was sued by a city resident, Kevin Lindke, who posted comments that were highly critical of the city's response to the pandemic.
In tossing out the Trump case two years ago, Justice Clarence Thomas already indicated his view that social media platforms were neither wholly public nor wholly private spaces — pointing out that the companies still have broad control over them, as in the banning of Trump after January 6th. Thomas said at the time that "applying old doctrines to new digital platforms is rarely straightforward."
In granting review to the two cases Monday, it seems all but assured that the social-media decision won't arrive until next term, in 2024, with oral arguments likely occurring in the fall or later.
Photo: Bill Mason