A Balancing Act: The State of Free Speech on Social Media for Public Officials
By: Raaid Bakridi
1. Introduction
Blocking someone on social media often seems inconsequential since it’s a digital medium and people do it every day.[1] However, the U.S. Supreme Court has an alternative view, especially when the person who commits the act is a public official. The Court held that, in some instances, public officials can be liable for First Amendment violations when they block anyone from their social media page Writing for the majority, Justice Barrett adopted a two-prong test to be used in instances involving public officials and their social media accounts because distinguishing between on- and off-the-job activity is frequently a “difficult [line] to draw”[3] and a “fact-intensive inquiry.”[4] The distinction, according to Justice Barrett, “turns on substance, not labels.”[5] But this isn’t the first time that the Court has been asked to weigh in on social media cases where public officials block their critics, cases which by nature involve possible First Amendment and public forum concerns.
2. Background
Former State Assemblyman Dov Hikind filed a lawsuit against Congresswoman Alexandria Ocasio-Cortez for blocking him on Twitter, now known as X. Hikind claimed that the Congresswoman violated his First Amendment rights by blocking him and other individuals critical of her. This raises concerns about politicians’ and public officials’ use of social media and its implications for free speech. Several of the lower courts have dealt with similar social media blocking issues, and each applied different approaches, leading to a split in authority among the Federal Circuit Courts. When confronted with the issue of blocking, the Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuit Courts have all used variations of two tests: a totality of the circumstances approach or an appearance-focused approach[10]
In 2021, the Supreme Court had to deal with a similar issue that involved the then-sitting President of the United States, Donald Trump. A group of individuals, including the Knight First Amendment Institute, filed a lawsuit against the President,[11] alleging that their First Amendment rights were violated after they were blocked for criticizing his policies. The District Court agreed,[12] and the Second Circuit upheld the decision.[13] Following this, President Trump appealed to the Supreme Court for a review which was denied.[14] After eleven consecutive conferences on the case, the Court sent it back to the Second Circuit to dismiss as moot.[15]
Although no majority opinion was offered, Justice Thomas wrote a detailed concurrence that essentially “highlights the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward.”[16] Justice Thomas further noted that the case highlights two important facts: “[t]oday’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors … We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”[17] Justice Thomas then concluded that the Trump case was not the right one to do so[18] and that the Court will have to address constitutional constraints on privately owned digital mediums sooner or later.
