The First Amendment Clinics at Arizona State, Duke, Illinois, and Vanderbilt law schools have filed an amicus brief in O’Connor-Radcliff v. Garnier, a case pending before the U.S. Supreme Court, to advocate for the First Amendment rights to access the social media platforms of government officials and agencies.
Additional amici include the First Amendment clinics at Southern Methodist and Tulane law schools, a legal scholar, and a nonpartisan coalition of citizens and journalists whose comments have been deleted or hidden or who have been blocked by public officials and public entities from their social media accounts.
This case is one of two addressing the social media question that the Court will consider next term, and the Clinics have filed amicus briefs in both cases.
The lawsuit in O’Connor-Radcliff v. Garnier was filed against Michelle O’Connor-Radcliff and T.J. Zane, two members of a Southern California school board who used social media to communicate with the public. After the pair blocked Christopher and Kimberly Garnier, two parents who criticized them on Facebook and Twitter, the Garniers sued in federal court, arguing that the school board members violated their First Amendment rights by blocking them.
The Garniers prevailed in district court and in the Ninth Circuit Court of Appeals, which ruled that the board members’ blocking of the Garniers on social media constituted government action, and that the board members had thus violated the Garniers’ First Amendment rights.
O’Connor and Zane appealed to the Supreme Court, citing the Sixth Circuit Court of Appeals’ decision in Lindke v. Freed, in which a lower court ruled against Kevin Lindke, a resident of Port Huron, Michigan, who disagreed with Port Huron City Manager James Freed’s handling of the COVID-19 pandemic and left critical comments on Freed’s Facebook page. Freed eventually blocked Lindke, and Lindke sued, arguing that Freed’s actions violated the First Amendment. The Sixth Circuit Court of Appeals ruled that, because Freed did not operate his Facebook page as part of his duties as city manager, his blocking of Lindke did not violate the First Amendment.
To resolve this split, the Supreme Court granted cert in both O’Connor-Radcliffe v. Garnier and Lindke v. Freed in the 2023-24 term.
In their brief, amici advocated for the Court to adopt a rebuttable presumption of public access to social media accounts of government officials and entities, proposing a standard that establishes a clear, bright-line rule that provides robust protections for expression and enhances judicial administrability. They also argue that the rebuttable presumption could apply to political candidates.
“This is a novel argument advanced in no other amicus brief,” said Jennifer Safstrom, who directs the Stanton Foundation First Amendment Clinic at Vanderbilt.
The Clinics’ brief takes a distinct position from the parties in O’Connor-Radcliff that a presumption of public access to government social media accounts is most protective of First Amendment freedoms.
Amici also highlight the key role social media now plays in the dissemination of government information, the facilitation of interactions between officials and constituents, and the public’s political discourse through numerous case examples.
“The proliferation of social media as the primary means of communication among public officials and their constituents, as well as the press, creates an urgent need for the Supreme Court to adopt a standard reflective of modern times and heightened First Amendment protections,” said Lena Shapiro, director of the First Amendment Clinic at the University of Illinois College of Law.
Safstrom notes that the resolution of these cases will determine how government officials will structure and use their social media pages to interact with their constituents and will shape the public’s First Amendment rights in the digital world.
“These cases are especially important for people who live in small towns and rural areas, where the social media accounts of local officials are often the only source of information about local government. If you’re blocked from those sites, you’re effectively prevented from learning what your government is doing,” said Sarah Ludington, who directs the First Amendment Clinic at Duke Law School.
Amici are committed to increasing access to governmental information and to protecting the public’s freedom of expression. The Supreme Court will consider the parties’ and amicis’ arguments in their next term, which begins in October 2023, and will render a decision by June 2024.