City Official May Block Online Critic, High Court Rules SOCIAL SILENCE
Figuring out how the First Amendment applies to social media is no easy task. The U.S. Supreme Court shed new light on the issue with a recent ruling upholding a public official’s constitutional right to block a critic from commenting on his personal Facebook account. In a unanimous ruling, the Supreme Court held that James Freed, city manager of Port Huron, Michigan, did not violate the First Amendment when he blocked Facebook comments by city resident Kevin Lindke criticizing the city’s handling of the COVID-19 pandemic. Writing for the court, Justice Amy Coney Barrett went a step further by defining a new two-part test for deciding when public officials are bound by the U.S. Constitution to allow commenters to speak freely on their social media accounts. First, the official must be authorized to speak for the government on issues covered in their social media posts. Second, they must use that social media account to exercise that authority. The decision in Lindke v. Freed drew fire from free-speech advocates. “You just got blocked on social media!” declared Lisa Remillard, a TV journalist and media coach, to viewers on TikTok. Lindke’s posts were highly critical, saying Port Huron’s response to the pandemic was “abysmal” and that “the city deserves better.” In his complaint, Lindke argued that Freed’s Facebook page
was a public forum and that he had unfairly discriminated against Lindke by deleting unfavorable comments. Although Freed’s Facebook page looked and worked like an outlet for city news and a forum for citizen concerns, Freed didn’t have the authority to communicate on behalf of the government. The court held that he was acting as a private citizen when he blocked Lindke’s comments, and the First Amendment is binding only to the government, not individuals. Therefore, the court ruled that Freed was exercising his own First Amendment rights rather than violating Lindke’s. “To misuse power, one must possess it in the first place,” Justice Barrett wrote. The court’s ruling acknowledged that the line between government and private communication blurs on the social media accounts of the nation’s 20 million state and local government employees. In Lindke v. Freed , Freed had converted a private Facebook account to a public page before becoming city manager. In 2014, after being named to the post, he added descriptions of himself as a “public figure,” along with a photo of himself wearing a suit with a city lapel pin. Most of his posts were about his personal life, but he also shared city news, including yard-waste collection plans and news releases from other city departments. The Supreme Court is wrestling with other cases addressing additional issues, such as whether states can prevent social media sites from taking down posts they find objectionable or whether the federal government can ask sites to remove content officials regard as misinformation. An earlier case involving former President Donald Trump was headed for the Supreme Court in 2019. In that case, Twitter users sued Trump for blocking them from an account he used to disseminate news and announce policies. A federal appeals court ruled that Trump violated the Constitution because he used the account as a government official, subjecting him to the First Amendment. However, after Trump left office, the Supreme Court dismissed the lawsuit as moot.
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