ACLU Urges Supreme Court to Enforce Free Speech Rights in Government Censorship Cases

WASHINGTON — The American Civil Liberties Union, the ACLU of Michigan, the ACLU of Northern California, and the ACLU of Southern California filed friend-of-the-court briefs in O’Connor-Ratcliff v. Garnier and Lindke v. Freed, two cases considering whether public officials act in their government capacities, and therefore are subject to the First Amendment, when they block people from social media accounts they use to communicate with the public. The briefs recognize that the First Amendment guarantees public officials’ right to free speech in their private capacities, including speech on social media. However, they argue that when public officials appear to represent their government offices online, they are acting in their government capacities and so are subject to the First Amendment’s prohibitions on government censorship.

The Supreme Court agreed to weigh in on the issue in two different lawsuits. One suit was filed against Michelle O’Connor-Ratcliff and T.J. Zane, two members of a school board in southern California who blocked Christopher and Kimberly Garnier, two district parents who criticized them. In a similar case, Kevin Lindke, a resident of Port Huron, Michigan, didn’t approve of City Manager James Freed’s handling of the COVID-19 pandemic and left critical comments on Freed’s Facebook page. When Freed eventually blocked him, Lindke went to court, where — like the Garniers — he argued that Freed’s actions violated the First Amendment.

The core issue in both cases is how to distinguish between a government official’s private-capacity use of social media, which is entitled to First Amendment protections, and their public-capacity use of social media, which is subject to First Amendment prohibitions. To make that determination, the ACLU urges the court to rely on the two factors it has historically considered when distinguishing between public officials’ private and state actions: 1) whether they engaged in official duties and 2) whether a reasonable observer would think they were cloaked in the authority of their office.

“If the Supreme Court holds that the defendants were not acting in their government capacities here, that would give government officials a constitutional blank check to silence and retaliate against constituents who express disfavored viewpoints on their social media pages,” said Evelyn Danforth-Scott, ACLU staff attorney specializing in Supreme Court litigation. “This is the first time the Supreme Court will address the line between government officials’ public and private actions in the digital age, and the court’s decision will have important consequences for how we can enforce and defend our constitutional rights.”

Currently, the lower courts are split on a crucial preliminary question presented in these and similar cases: whether public officials who maintain social media profiles qualify as “state actors” subject to constitutional constraints. The Ninth Circuit Court ruled that O’Connor-Ratcliff and Zane were acting in their official capacity, and blocking their constituents violated the First Amendment. However, the Sixth Circuit Court ruled that Freed did not operate his Facebook page as part of his duties as the city manager, so blocking Lindke did not implicate any First Amendment restrictions on government censorship whatsoever.