Federal courts in California sided with the Garniers, ruling that the First Amendment prohibited officials from excluding their critics if board members used their personal pages for public business.
Three years ago, Trump suffered a similar defeat when federal courts in New York ruled that he violated the First Amendment by blocking his critics from his Twitter account. The Supreme Court later dismissed his appeal because he was then out of office.
Now the issue is before the court in the case of Michelle O’Connor-Ratcliff, a Poway Unified School District member, and TJ Zane, a former member who was also sued.
His case was compared to that of a Port Huron, Michigan, city manager who won a ruling blocking an online critic.
The legal question before the high court is whether public officials “engage in state actions” when they use their personal pages to communicate with the public.
The Ninth Circuit Court in San Francisco ruled that school board members took official action and were subject to the First Amendment. “They clothed their pages with the authority of their offices and used them to communicate their official duties,” Judge Marsha Berzon said.
Board members appealed and urged the judges to overturn the Ninth Circuit’s ruling, which sets the law for public officials in California and Western states.
They argued that they were expressing their personal opinions on social media and that their Facebook or Twitter accounts did not speak for the school district. A ruling in Garnier’s favor «will have the unintended consequence of generating less expression if public officials’ social media pages are overrun with harassment, trolling and hate speech, which officials will be unable to filter,» they said.
In the Michigan case, by contrast, the Sixth Circuit Court ruled that the city manager’s Facebook page was his personal account and was not part of his job or official duties.
The judges did not seem divided along the usual ideological lines. Justices Samuel A. Alito Jr. and Elena Kagan questioned the idea that government officials could protect themselves from critics by using a private social media account.
“Does that mean President Trump’s Twitter account was personal, too?” Kagan asked Hashim Mooppan, a Washington lawyer representing school board members. «He seems to have been doing a lot of government on his Twitter account.»
But Justice Brett M. Kavanaugh said he was wary of the court turning the personal pages of state and local officials into official government accounts and subjecting them to First Amendment claims. «There are a large number of government officials across the country at the town and city level… It’s going to affect a lot of people,» he said.
Typically, the First Amendment protects the rights of writers or speakers, but in cases like these, it may give others the right to respond to the speaker.
The pair of cases heard Tuesday present the first of three disputes before the Supreme Court over how the First Amendment applies to social media.
The justices will also rule on whether states like Texas and Florida violate the First Amendment if they penalize school media platforms for allegedly discriminating against conservatives. They will also decide whether the Biden administration violated the First Amendment by pressuring Facebook and other platforms to remove “misinformation” about COVID-19 and vaccines.