Writer: Lily Engel
Editor: Violet Scharf
Fall 2023
Lindke v. Freed was heard before the Supreme Court in October, addressing the respective First Amendment rights of government officials and constituents on social media. James Freed was the city manager in Port Huron, Michigan during the COVID-19 pandemic. When Freed became city manager, he changed his Facebook status from private to public. On this page, he shared both official office updates as well as personal. When a citizen, Kevin Lindke, responded negatively and repeatedly to Freed's posts, berating his handling of the pandemic and the procedures put in place - Freed blocked him and deleted his comments. Lindke then sued Freed over First Amendment rights and both a lower circuit court and an appeals court sided with Freed. Now that it is at the Supreme Court level, things become more complicated.
One of the first questions we need to ask is “Is social media activity state action?” This complicated question is something that seems to differ from case to case. In Freed’s case, he had his city manager role, email, and office listed on his page. He used his page to spread information about what he was doing at the government office, promoting his actions. While this page was not run by his office staff, it is being used by citizens to gain information about the city and interact with each other. This is an especially important process that citizens use to discuss changes in the government that affect their lives. While Lindke was berating Freed's achievements and handling of the pandemic, it was still the sharing of his opinion on what was for all intents and purposes - a public site by a government official.
On the other hand, it is a constitutional right that every citizen must be able to have a personal life online. This right does not go away once someone becomes a government official, it just becomes more complicated. One complication that emerges is the risk of censorship. For example, when Former President Trump was in office, he used Twitter heavily to spread information and uplift his office’s achievements. The courts decided he was not allowed to block people on Twitter because this cut people off from their government and in some cases, it was the only platform where the information was spread. Blocking people would have resulted in a one-sided dynamic and biased rendering of the public.
There are many examples, scenarios, and questions that cases revolving around free speech need to address. One scenario presented was by Justice Kavanaugh, who mentioned the example of a government official having a personal public page and an official one on Facebook or Twitter. In his example, a government official implemented new recycling rules that affected the entire city. Then, they only posted on their personal public page about the program and said they would reply to any questions or comments on them. In this case, even though it was only posted on the personal site, would this be a state action? Justice Jackson then posed a solution that would require a government official to state with every post, whether it is official government business or not. Would this clear up some of the confusion surrounding censorship in these cases? Unfortunately, this was quickly refuted by many lawyers, as it could cause actual harm. A government official could post and claim it is personal, but then give information that is important for the public and not just the social media followers they choose to let follow them - such as voting dates, issues, or opinions that everyone should know about their representative.
All of this is creating more confusion than answers. As Justice Kagan said, there are “First Amendment issues all over the place.” It seemed that during the hearing, no justice was convinced of either side's argument yet, nor were they grouping along party lines, which is normally predictable. There is no one rule that can cover the entire hierarchy of roles and responsibilities of government officials, meaning that there are going to be many solutions proposed or even brought into law. This could take years to fully see the extent. It is impossible to address every single scenario, as we saw above in the many scenarios discussed by the justices.
References
Kruzel, Josh, and Andrew Chung. “US Supreme Court Weighs If Public Officials Can Block
Critics on Social ...” US Supreme Court Weighs If Public Officials Can Block Critics on Social Media, 1 Nov. 2023, www.reuters.com/legal/us-supreme-court-decide-if-public-officials-can-block-critics-social-media-2023- 10-31/.
Quinn, Melissa. “Supreme Court Grapples with Fights over Public Officials Blocking
Constituents on Social Media.” CBS News, CBS Interactive, 31 Oct. 2023, www.cbsnews.com/news/supreme-court-social- media-blocking-cases/.
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