WASHINGTON — The ghost of Donald Trump's regular pronouncements on Twitter during his presidency hung over the Supreme Court during a Halloween hearing as the justices weighed whether public officials can be sued for blocking or muting unwelcome voices.
The justices heard oral arguments in two cases involving school board members in Southern California and a city manager in Michigan. While the officials are far less prominent than Trump, the legal dispute is the same as a claim he faced in office — specifically, does blocking someone on social media give rise to a free speech violation under the Constitution’s First Amendment?
Trump's name came up several times during oral arguments in the first case, in which lawyer Hashim Mooppan, who defended Trump in his case, argued on behalf of the school board members.
At issue is whether public officials' posts and other social media activity constitute part of their governmental functions. If it does, then blocking someone from following an official could constitute "state action" that could give rise to a constitutional claim.
With public officials increasingly using social media to interact directly with voters, the Supreme Court's ruling will set the rules of the road for future cases.
Based on their remarks during the oral arguments, it seemed the justices were in agreement that some comments by officials on social media could constitute state action and give rise to constitutional claims, while others were not.
The outcome, therefore, could hinge on how broadly the court ends up defining the scope of an official’s duties and authority, a finding that could differ from case to case.
It does not appear the court would conclude that a finding of state action would depend on whether the social media page in question has the appearance of an official page.
Justice Elena Kagan cited Trump’s use of Twitter in questioning Mooppan about when an official’s posts could be considered state action.
As president, Trump did "a lot of government on his Twitter account,” including announcing policies, she said.
“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,” she said.
Mooppan conceded that Trump's case was a close call, in part because at times a government-funded staffer helped him to write posts.
But on the other hand, making a comparison with private property, Mooppan said Trump was free to exclude people from meetings at his Mar-a-Lago estate in Florida even when he was serving as president.
Justice Amy Coney Barrett, one of Trump's three appointees to the court, also referred to Trump, noting that when heads of government like the president are posting on social media, it can be harder to determine the limits of their official duties.
"I think it's very difficult when you have an official who can in some sense define his own authority. So I think for a governor or, you know, President Trump, it's a harder call," she said.
Trump was sued when he was president, with the courts ruling against him, noting that he often used his Twitter account to make official announcements. But that lawsuit was tossed out as moot once he left office in January 2021. At that point, Twitter had disabled Trump’s account, although the company’s new owner, Elon Musk, has reversed course as part of a major overhaul that has included changing the site’s name to X. In other disputes, however, courts have reached differing conclusions.
The California case arose after two members of the Poway Unified School District Board of Trustees, Michelle O’Connor-Ratcliff and T.J. Zane, blocked parents Christopher and Kimberly Garnier from commenting on their Facebook page in 2017. O’Connor-Ratcliff also prevented Christopher Garnier from responding to her Twitter posts. Zane has since left office.
While the Garniers' comments were lengthy and repetitive, they were not profane or violent, the San Francisco-based 9th U.S. Circuit Court of Appeals found last year in a ruling for the couple, which upheld a similar decision by a federal judge in the Southern District of California. The appeals court concluded that the elected officials were acting in their official capacities.
The justices seemed to be struggling to come up with a legal test that could apply whenever similar issues arise nationwide.
"That's the kind of practical information people are going to need," said Justice Brett Kavanaugh, whose wife, Ashley, is a town manager in Maryland.
Zeroing in on local government functions, Kavanaugh asked various questions about whether postings by officials on social media about such issues as trash collection could be viewed as government action, especially if the information was not available elsewhere.
With officials also often not making it clear whether their social media pages are official or personal, it could be hard to tell whether their comments are "occurring in one world rather than the other," Justice Ketanji Brown Jackson said.
The dispute in Michigan began in March 2020, when Port Huron City Manager James Freed, an appointed official whose Facebook page described him as a “public figure,” posted information there about the city's efforts to deal with the Covid-19 pandemic. After resident Kevin Lindke posted comments criticizing the city’s response, Freed blocked him.
Freed argue that the no-longer-active Facebook page was a personal page that he used to share pictures of his family and comment on his daily activities. The 6th U.S. Circuit Court of Appeals, upholding a lower court decision, agreed in June of last year, ruling that Freed was not acting in his official capacity and that therefore his Facebook activity did not constitute state action.
Freed's page was somewhat different from the ones at issue in the school board case, because it included a lot more personal content, making it much less clear whether it was an official page.
It would be easy to look at Freed's page and "think that surely this could not be the official communication channel," Kagan said.
The Biden administration has filed briefs backing the officials, taking a position similar to the Trump administration’s over Trump’s Twitter account.
Later in the term, the justices will hear oral arguments about the constitutionality of Republican-backed laws in Florida and Texas that would prevent social media companies from banning users for contentious rhetoric.
The court will also weigh claims that the Biden administration has unlawfully put pressure on social media platforms to remove certain content, a form of coercion dubbed “jawboning."
At times in the past, the justices have shown a lack of savvy in dealing with novel issues concerning technology and the internet. That did not appear to be as much of an issue Tuesday, although Justice Clarence Thomas did make one concession early on.
"I'm not a Facebook person," he said.