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Supreme Court decides whether officials can block criticism on social media

WASHINGTON — The Supreme Court agreed Monday to rule whether elected officials violate the First Amendment by blocking people from accessing their social media accounts.

After a New York federal appeals court ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum, lower courts were divided on the issue, and appear to have reached the Supreme Court, where he has no authority to base people’s comments on the Twitter account. View excludes it.

“We conclude that the evidence of the official nature of the account is overwhelming,” Judge Barrington D. Parker Jr. wrote for a unanimous three-judge panel of the U.S. Court of Appeals for the Second Circuit. “We also concluded that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those with whom he disagrees.”

If the account had been private, Mr. Trump could have blocked anyone he wanted, Judge Parker wrote. But because he was using the account as a government official, he was bound by the First Amendment.

After Mr. Trump lost the 2020 election, the Supreme Court reversed the Second Circuit ruling, finding it moot.

On Monday, the justices opened a review of two cases involving local officials, focusing on whether their use of private social media accounts to discuss public issues constitutes an “act of state” governed by the First Amendment, or private activity, which it does not.

One such case involved the Facebook and Twitter accounts of two members of the Poway Unified School District in California, Michelle O’Connor-Ratcliff and TJ Zane. They use accounts created during the campaign to communicate with their constituents about school board activities, invite them to public meetings, solicit input on board activities, and discuss school safety issues.

Two parents, Christopher and Kimberly Garnier, often made lengthy and repetitive critical comments that were eventually blocked by officials. The parents sued, and a lower court ruled in their favor.

“We have no doubt that social media will continue to play an important role in moderating public debate and promoting the free expression at the heart of the First Amendment,” Judge Marsha S. Berzon said for a unanimous three-judge team wrote. U.S. Court of Appeals for the Ninth Circuit in San Francisco. “When state actors enter that virtual world and invoke their governmental identities to create a forum for that expression, the First Amendment comes in.”

A petition by school board officials seeking Supreme Court review of the case, O’Connor-Ratcliff v. Garnier, No. 22-324, said their accounts were personal and were held “without any guidance, funding, support or Other Participating Cases” created and maintained by the District. “

The petition added, “Public officials take no part in state action in blocking users from accessing social media accounts where the account is not operated under any governmental authority or responsibility.”

The second case, Lindke v. Freed, No. 22-611, involved a Facebook account maintained by Port Huron, Michigan City Manager James R. Freed. He uses it to comment on various topics, some personal, some official. The latter describes the city’s response to the coronavirus pandemic.

The posts drew criticism from resident Kevin Lindke, and Mr Fried eventually blocked them. Mr. Lindeck sued and lost. Writing for a three-judge unanimous panel of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, Judge Amul R. Thapar said Mr. Fried’s Facebook account was personal, which meant the First Amendment had no effect .

“Fried did not operate his page to fulfill any actual or apparent duty of his office,” Judge Tapal wrote. And he did not use his government powers to maintain it. As such, he acted in an individual capacity — no State act. “

Katie Fallow, an attorney at Columbia University’s Knight First Amendment Institute who sued Trump, said in a statement that the issues the judges agreed to decide would only become more urgent.

“As more and more public officials use social media to communicate with their constituents about public affairs,” she said, “public officials’ social media accounts are doing the same thing that historical council meetings, school board meetings and other offline meetings have done. role. A public forum.”

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