O’Connor-Ratcliff v. Garnier and Lindke v. Freed

The ACLU, the ACLU of Northern California, and the ACLU of Southern California filed amicus briefs in support of everyday people fighting for government transparency and accountability in two cases set for review by the U.S. Supreme Court this Term: O’Connor-Ratcliff v. Garnier and Lindke v. Freed.

Both cases were brought by constituents of local government officials, who found themselves blocked from the officials’ social media profiles after they posted critical comments about their job performance. The plaintiffs have argued that blocking them from the officials’ pages—which provided updates on government projects, policy changes, and critical health and safety alerts—violates First Amendment restrictions on government censorship.

The Supreme Court granted review after the Courts of Appeal divided on a crucial preliminary question presented in these and similar cases: whether government officials are even acting in their government capacities—that is, taking “state action”—when they curate their social media profiles. Under longstanding Supreme Court precedent, if officials are not engaged in state action, then they cannot be held accountable for violating the plaintiffs’ First Amendment rights (or, for that matter, any other fundamental rights).

The ACLU argued the defendants in these cases were acting in their government capacities, and so should be subject to First Amendment guardrails, because they cloaked their social media profiles in the authority of public office. Although the ACLU acknowledges public officials have their own First Amendment rights to speak in their private capacities, these particular social media profiles gave off the appearance of government involvement—and so the officials’ actions maintaining and curating the pages should be accountable to the Constitution.

The upshot of the government officials’ argument is that they should have a constitutional blank check to silence or retaliate against their constituents for expressing disfavored viewpoints on social media. This would give officials a way to short-circuit our most fundamental First Amendment protections by turning to mainstream digital communications channels.

These cases also matter a great deal outside of the free speech context. This will be the first time the U.S. Supreme Court has distinguished between government officials’ public and private actions in the digital age. Where the Court chooses to draw that line will have ramifications across-the-board for how we the people can protect and defend all fundamental rights.