The Stanton Foundation First Amendment Clinic filed an amicus brief before the United States Court of Appeals for the Fifth Circuit in the case Detiege v. Jackson. The brief argues that custom and usage establish state action in lawsuits alleging First Amendment violations against state legislators who block members of the public from accessing their official social media accounts.
The case arose after a Louisiana state senator blocked two people on X (formerly Twitter) who expressed their disagreements via comments on her posts. The district court’s decision favored the state senator, arguing that the plaintiffs had not proven state action. The court reasoned that legislators do not possess authority to speak individually on behalf of the state. Instead, the district court suggested that legislators only possess authority to speak on the state’s behalf when the legislative body is in session and acts collectively.
On behalf of the Amici, Clinic student-attorneys Shaxper McCarver ’26, Nathaniel Cambridge ’26, and Joshua Vituszynski ’26 contended that the district court’s ruling set a troublesome precedent, potentially allowing state legislators to suppress protected speech by blocking constituents and other individuals on social media with impunity. “It was exciting to gain hands-on litigation experience within an evolving legal landscape. Developing a clear, common-sense state-action test is critical so public officials cannot leverage state resources while blocking critics and dissenters on social media,” said McCarver, who also worked on the Clinic’s summary judgment briefing in Fox v. Faison, a similar case which arose after a Tennessee state legislator blocked a critic from his Facebook page.
The Amici assert:
- The Fifth Circuit should reject a requirement of collective action for legislators to speak with state authority. Legislators operate their social media accounts individually, yet still in their official capacities. The district court’s narrow interpretation of state authority would grant widespread immunity to legislators for constitutional violations they commit on social media.
- A collective action requirement conflicts with Supreme Court authority, which indicates that legislators perform their official non-legislative acts, such as constituent services and outreach, individually and under state authority.
- Because state authority should rest on a representative’s substantive function, the Fifth Circuit should look to the custom and usage of Louisiana state legislators. The longstanding practices of these legislators demonstrate that they consistently expend state resources on public outreach through social media, a crucial indication of speaking on the state’s behalf. Therefore, they possess authority to speak on behalf of the state in their individual capacity, particularly when they use social media to facilitate public outreach.
The following organizations and individuals joined as Amici (with institutional affiliation included only for identification purposes):
- The American Civil Liberties Union of Louisiana
- The Duke Law First Amendment Clinic
- The Electric Frontier Foundation
- The First Amendment Clinic at Southern Methodist University Dedman School of Law
- Lafayette Citizens Against Censorship
- The Media Institute
- The National Coalition Against Censorship
- Clare R. Norins, Clinical Associate Professor and Director of the First Amendment Clinic at the University of Georgia School of Law
- The Pelican Institute for Public Policy
- Amanda Reid, Associate Professor at the Hussman School of Journalism at the University of North Carolina at Chapel Hill and Adjunct Professor at the University of North Carolina School of Law
- The Rutherford Institute
Detiege v. Jackson Amicus Brief
About the Stanton Foundation First Amendment Clinic
Students in the Stanton Foundation First Amendment Clinic, under faculty supervision, have responsibility for representing clients in civil litigation cases implicating First Amendment speech, press, assembly, and petition rights.