This would comport with the Supreme Court’s recognition in 2017 that social media sites now are among “the most important places for the exchange of views” and that “on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.” It narrowly finds state action only when a law designates running a social media account “ as one of the actual or apparent duties” (an “official responsibility”) of a public official or when an account “belong to an office, rather than an individual officeholder.”Īdopting the Ninth Circuit’s close-nexus approach would make it easier, although not inevitable, for citizens to prove state action. State action exists under this approach if there is “ close nexus” between how public officials use “ their social media pages and their official positions.”Ĭonversely, the Supreme Court should reject the Sixth Circuit’s method in Lindke, because it makes it too difficult for blocked citizens to prove state action. When it resolves the discord, the court should adopt the holistic, state-action tack taken by most circuits, including the Ninth Circuit in O’Connor-Ratcliff, which evaluates “ a broad range of factors,” including content and appearance. Court of Appeals for the Ninth Circuit in O’Connor-Ratcliff and the Sixth Circuit in Lindke took contrasting approaches that the high court will now analyze. Troublingly, lower courts differ on how to answer the state-action question in social-media, personal-account cases. In short: no state action, no First Amendment case. No First Amendment claim thus arises when officials use social media accounts like private citizens, rather than as governmental actors, because the amendment only protects against government censorship. Resolving this foundational state-action question is critical that’s because, as the Supreme Court recently reiterated, the First Amendment’s “ Free Speech Clause prohibits only governmental abridgment of speech,” not “private abridgment.” The two cases involve a key First Amendment question: When public officials block you from their personal social media accounts because you’ve posted critical comments about them or their policies, does that violate your constitutional rights of free speech and petition?īut before getting there, courts must decide the threshold issue of whether the officials are using their accounts more in a private capacity - say, posting family photos or favorite recipes - or more as public forums for job-related matters like pronouncing policies and communicating with constituents.
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