U.S. Supreme Court issues important rulings on cases regarding free speech
By Lindsey French
AAC Legal Counsel
In its October 2023 session, the U.S. Supreme Court took up three cases regarding the limitations around government action and the First Amendment right to free speech. Two cases dealt with local government officials’ use of their social media accounts. As the Court attempted to clarify when and how government officials can block users or delete comments from their accounts, one suggestion was made very clearly: keep your private and your government social media accounts separate. The cases were heard, as they often are, after somewhat of a split between the Sixth and Ninth Circuit Courts of Appeal on when local officials are using social media for personal purposes versus in their governmental capacity, invoking First Amendment protections of citizens engaging with the accounts.
O’Connor-Ratcliff v. Garnier was appealed from the Ninth Circuit, which ruled that two school board members violated the First Amendment when they blocked disgruntled parents from their personal social media accounts. The Court reasoned that because they also used these accounts to keep the public informed about activities of the board, there was “a close nexus” between the school board members’ “use of their social media pages and their official positions.”
Lindke v. Freed was appealed from the Sixth Circuit, which ruled that no First Amendment violation occurred. The Court found that the city manager was not acting in his official governmental capacity when he blocked a local resident from his personal social media page, because he maintained the page in his personal, rather than his official capacity.
The U.S. Supreme Court unanimously ruled on Lindke in March and agreed with the Sixth Circuit. In the ruling, the Court set forth a new two-part test to determine if an elected official’s social media page is subject to First Amendment scrutiny. First, the local official must have the authority to speak on behalf of the government, and second, the official must be using that power when they created the post that is the issue at hand. Where a social media page has mixed posts, both personal and government speech, a “fact-specific undertaking in which the post’s content and function are the most important considerations” must be factors in making a determination.
The Court went on to point out that it is easier for the official to defend their position when they are deleting specific comments from their purely personal posts as opposed to blocking people from the page entirely when there are both personal and government speech on the page. The Court cautioned that a “public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
The same day, the Court remanded O’Connor-Ratcliff back to the Ninth Circuit for it to rehear the case under the new Lindke two-part test. The major takeaway from these cases for local officials is to keep your personal social media accounts and your government social media accounts separate and refrain from intermingling the two. In other words, do not put official business on your personal page, and vice versa.
The Court ruled in May on another case involving the government’s influence affecting First Amendment rights in National Rifle Association of America v. Vullo. The case stems from Maria Vullo’s, the former New York Department of Financial Services head, 2017 investigation into NRA-endorsed insurance programs that provided coverage for injuries caused by firearms. After a determination that some of the programs violated New York law, some of the insurance companies agreed to pay up to $7 million in fines and to halt these programs in New York.
In 2018, a shooter killed 17 students and staff at a high school in Parkland, Florida, a highly publicized tragedy that flamed the debate over gun control in America. Afterwards, Vullo issued guidance letters to financial and insurance institutions urging them to discontinue business with firearm-promoting organizations. After some institutions did sever ties with the NRA, the NRA sued Vullo, alleging she had violated their First Amendment right to free speech by urging businesses to cut ties with them over their political activity.
The lower court allowed the lawsuit to proceed, but was overturned by the Second Circuit Court of Appeals. The Second Circuit found that Vullo’s actions did not violate the NRA’s rights to free speech, and that Vullo was protected by immunity. The U.S. Supreme Court unanimously reversed the Second Circuit’s decision and ruled that the NRA should be allowed to pursue its claim that Vullo threatened enforcement action against businesses that were affiliated with the NRA to punish the organization for its pro-firearm political advocacy.
The Court of Appeals will have to determine whether Vullo’s conduct amounted to coercion and whether her conduct was a suppression of the NRA’s right to free speech. It also will have the opportunity to evaluate Vullo’s immunity claims. This will be an important case in framing to what extent the government can urge a viewpoint onto constituents before it is considered coercion and a violation of the First Amendment.
