Member Article

The United States Supreme Court will soon decide whether public officials may be liable for blocking constituents on social media. On October 31, 2023, the Court heard oral argument in O’Connor-Ratcliff v. Garnier[i] and Lindke v. Freed,[ii] cases in which local school board officials and a city manager, respectively, are alleged to have blocked constituents from commenting on, or viewing, public social media accounts used for both government business as well as personal affairs. The constituents filed suit in federal court under 42 U.S.C. § 1983, arguing the officials violated their First Amendment rights.

The Supreme Court has held that the government ordinarily may not exclude speakers from a forum on the basis of viewpoint or content,[iii] and that citizens have a general right to receive information and ideas.[iv] Moreover, the parties agreed that the officials’ social media pages fell within the scope of the First Amendment. But because only government actors are constrained by the First Amendment, the specific question before the Court was to what extent, and under what circumstances, officials engage in state action subject to constitutional protection when using their social media accounts.

As Justice Neil Gorsuch stated, the Court confronted a “profusion of possible tests” to answer this question, considering, among other things:

• Whether the social media page is used primarily for private or government business;
• Whether the official exercised any duties or authorities of their job when blocking the constituent;
• Whether the device used to block constituents is owned by the government;
• What, if any, other means to receive the information and participate in government are available to the constituent; and
• The evolving nature of public participation in the online ecosystem.

Officials can expect a ruling from the Court in early 2024. However, due to the number of open questions and the possibility of a narrow decision, O’Connor-Ratcliff and Lindke are unlikely to be the last word. Public officials and public entities with public or private social media accounts should:

1. Monitor legal developments and update their social media policies accordingly; and
2. Think carefully before posting or blocking anyone on social media.

For questions regarding this evolving legal landscape, or if you require assistance with a government social media account, contact Evan Yahng or your Dinsmore attorney.

[i] No. 22-324 (2023).

[ii] No. 22-611 (2023).

[iii] See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019).

[iv] See generally Richmond Newspapers v. Va., 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980).