Do public officials have the right to block their constituents from their personal social media pages? The U.S. Supreme Court is taking up the issue.

On Oct. 31, the justices heard oral arguments to decide whether “a public official’s social media activity constitutes ‘state action’ only if the official used the account to perform a governmental duty or under the authority of his or her office.”

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There are two similar cases. The first is O’Connor-Ratcliff v. Garnier, in which two school board members in California blocked parents from their social media pages for posting criticism of their work. The second is Lindke v. Freed, in which a city manager in Michigan blocked a constituent from his personal social media page, citing harassment.

In both cases, the constituents say their First Amendment rights were violated when the public officials blocked them from posting criticism.

The justices will decide if public officials’ personal social media pages are considered official government duty, and whether public officials are allowed to block constituents who post criticism.

Prior to the justices hearing oral arguments in the pair of cases, two lower courts developed legal tests to determine if public officials’ personal social media accounts are state action. In one case, the lower court determined that the accounts’ appearance and purpose deemed them state action. In another case, the lower court ruled that state action requires an “exercise of duty or authority.”

Lawyers for the public officials argue that the officials created their social media pages before their life in public office and used their pages to post about their jobs. However, the pages were not official government duty, and the public officials also shared their personal lives including pictures of their families and pets.

“Let me also give you a practical reason why this isn’t the right way to think about it,” said Hashim Mooppan, the attorney representing the California school board officials. “You’re setting up a trap for the unwary. There are lots of government officials in this country. They are probably not all going to read this court’s decision. And if you adopt a rule that the only way they can exercise their rights under Halleck to exclude people from their personal property is to include a disclaimer, some of those people aren’t going to do it and they’re going to lose their First Amendment rights. And that’s the exact opposite of how the First Amendment normally works.”

Lawyers for the constituents argue that public officials are “never off the clock” and their social media pages that are used to communicate government business do not immunize them from constitutional scrutiny.

“Under our test for state action, a public official who creates a channel for communicating with constituents about in-office conduct, and then blocks a user from that channel, must abide by the Constitution,” said Allon Kedem, the attorney representing Kevin Lindke. “This test, which focuses on how the public official is using and purporting to use that account, is consistent with this court’s precedent under which a public official who purports to act in that capacity is a state actor.”

The Supreme Court will now decide on the issue four years after a federal appeals panel ruled that former President Donald Trump had violated the Constitution after he blocked critics on then-Twitter. The panel ruled that since Trump used the account for official government business, he could not block constituents from seeing the content. The Supreme Court dismissed the case in April 2021, throwing out the lower court ruling on the grounds that it was a moot point, following Trump’s loss in the 2020 election. 

Decisions in these cases are expected in June 2024.