Posts Tagged ‘free-speech’
When Public Officials Post or Block on Social Media: The Supreme Court Weighs In on State Action
A variation of what I call the converse of the typical state action question arises when public officials post or block on social media. The Supreme Court recently addressed this issue in two cases in which it granted certiorari and vacated and remanded.
In one, Lindke v. Freed, 143 S. Ct. 1780 (2023), granting certiorari in Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024), the Question Presented was: “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”
In the other, O’Connor-Ratcliff v. Garnier, 143 S. Ct. 1779 (2023), granting certiorari in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 405 Ed. Law Rep. 715 (9th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024)(per curiam, the Question Presented was: “Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”
In Lindke, the Sixth Circuit ruled that a city manager who used his Facebook page for administrative directives and for explaining his Covid-19 policies, but who also posted as a father and husband, was not a state actor when he deleted the plaintiff’s critical comments from his page and “blocked” him as well, thereby keeping the plaintiff from commenting on the page and its posts. The Sixth Circuit found that the city manager maintained the Facebook page in his personal capacity: under its “state-official” test, which it said was a version of the Supreme Court’s nexus test, the Facebook page did not derive from defendant’s duties as city manager—it did not belong to the office of city manager. Further, it did not depend on his state authority. The Sixth Circuit observed that its approach was different from that of some other circuits which focused on a page’s appearance or purpose: “we focus on the actor’s official duties and use of government resources or state employees.”
The Supreme Court, in a unanimous opinion by Justice Barrett, vacated in Lindke and remanded. Observing that in cases like this it is often difficult to tell whether speech is official or private, it emphasized that the plaintiff must show that the city manager (1) had actual authority to speak for the city and (2) purported to exercise that authority in the relevant posts. It is the source of the power that controls, and this must be ascertained on a case-by-case basis. In addition, the Court cautioned that a public official might post job-related information for personal reasons. “[I]t is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” After noting the difference between deleting and blocking, and warning about the dangers of “mixed use” social media accounts, the Court concluded: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
In O’Connor-Ratcliff, members of a school district’s board of trustees, who used social media to communicate with constituents and parents about public issues and board matters, blocked the plaintiff parents entirely from defendants’ social media pages because of the plaintiffs’ repeated criticisms of the trustees and the board. The Ninth Circuit ruled that they acted under color of law. It declared: “[A] state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.” There was a clear nexus between the trustees’ use of social media and their official positions. The Ninth Circuit observed that it was following the analysis of the Second, Fourth and Eighth Circuits in emphasizing the defendants’ use of social media as “an organ of official business.”
Again, the Supreme Court vacated and remanded. In a per curiam opinion, it explained that on remand the Ninth Circuit should apply the Court’s approach in Lindke: (1) did the trustees have actual authority to speak for the school district and (2) did they purport to exercise that authority in their posts.
Note that the Court in Lindke and O-Connor-Ratcliff did not itself apply its two-part approach to the cases before it, as it could (and perhaps should) have done to provide guidance to the circuits, but instead remanded. Note also that the Court indicated that the inquiry into actual authority should be based not only on formal statutory law but also on “custom” and “usage” per the color of law language of § 1983.
On state action, the converse of the typical state action question and color of law generally, see Ch. 2 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).
A Personal New Year’s Day Post on Free Speech and Anti-Semitism
(I presented the following to my fellow congregants this past Saturday morning, Dec. 30, 2023, at the Lake Shore Drive Synagogue in Chicago. I like to think it may hold some interest for others as well.)
I want to ask your indulgence in allowing me to say a few words about Freedom of Speech: what Freedom of Speech is, what its purposes are and why as Jewish citizens of the United States we need to understand it.
Why here and now? People have been asking me about the First Amendment because of the fiasco involving the Congressional testimony of the presidents of Harvard, Penn and MIT. Also, because we are confronted by a surge in anti-Semitism here and abroad.
I. What is Freedom of Speech? Some basics.
The First Amendment to the United States Constitution, which created our republican form of government, declares that “Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
1. The First Amendment applies to government at all levels, and it protects us from governmental regulation of speech, especially (but not only) our political speech. It does not ordinarily apply to governmental regulation of conduct. So that defacing someone’s property by spray-painting swastikas and anti-Semitic slogans is conduct that can be punished. Tearing down posters of Hamas-held hostages on private property is conduct that can be punished. Forcing Jewish students into a university library while pounding on the doors and windows is conduct that can be punished.
2. However, and this is an important takeaway, the First Amendment does not apply to the private sector, including social media, private corporations and private schools and universities. Meaning that they are not bound by First Amendment restrictions. (More about educational institutions below)
3. Like every other individual constitutional right, it is not absolute. There is no First Amendment right to say whatever you want, whenever you want and wherever you want.
Along these lines, here are three exceptions to the First Amendment that Jews (and all citizens) ought to know about.
3 (a). Government can punish an individual who, by speaking to others, intends to incite imminent illegal conduct such as physical violence where that imminent illegal conduct is likely to occur (the incitement to violence exception to the First Amendment). Example: a pro-Palestinian speaker in front of the Israeli consulate in Chicago exhorts a riled-up large group of protestors to burn the consulate down NOW. That speech is punishable whether or not the consulate is burned down.
3 (b). Government can punish an individual who threatens another with physical violence where the other person reasonably believes that such a threat has been made (the true threat exception to the First Amendment). Example: someone who knows my pro-Israel views, and whom I know and who lives near me, sends me an email threatening me with serious bodily harm the next time I leave my home.
3 (c). Government can punish an individual who utters what are called fighting words in a face to face verbal confrontation with another person: this is likely to lead to a breach of the peace or disturbing the peace (the fighting words exception to the First Amendment). Example: a pro-Palestinian protestor comes up to you in public—you’re holding an Israeli flag–and calls you a child-killing Nazi directly to your face.
7. However, offensive speech such as hate speech, standing alone and not involving incitement, true threats and fighting words, is protected under the First Amendment even though it can be incredibly hurtful, isolating and silencing. This protection is unique to the United States; many European countries criminalize hate speech for historical reasons. A possible advantage of protecting hate speech—some people may disagree—is that you know who your enemies are.
II. What’s it for? The purposes.
Our form of government is self-government through reason (a repudiation of government by divine right or by clerics).
The first important purpose of the First Amendment is therefore to protect us from governmental attempts to regulate and criminalize our political speech in order that we can meaningfully participate in self-government. We don’t want government regulating political content and viewpoint.
A second purpose of the First Amendment is to protect the marketplace of ideas—you’ve heard of this one–a kind of laissez faire approach to ideas. The hope is that competition among ideas will bring us closer to something approaching truth. We don’t want government skewing this marketplace by intervening and regulating content and viewpoint.
A third purpose is to promote the personal development of the individual intellectually, politically, culturally and artistically.
A fourth purpose is that speech functions as a safety valve. If people can criticize and protest government and powerful interests in the private sector, then there is less reason to turn to violence and revolution.
Underlying all four of these purposes is skepticism about, and deep suspicion of, government when it tries to regulate speech; namely, the fear of censorship.
III. Why are these basics about the First Amendment important for Jews in particular?
1. Jews have, for better or worse, had to develop a thick skin because of centuries of Jew-hatred. We know our history only too well. This thick skin has helped us to adjust somewhat during the current and shocking upsurge in anti-Semitism in the United States and elsewhere.
But First Amendment protection encourages us and those who are on our side to go on the offensive and to fight it out in the marketplace of ideas without government interference. Many thousands of individuals and Jewish groups have done this since October 7: getting the facts and our opinions out there in print and social media in a reasoned and persuasive way.
2. As I mentioned earlier, the First Amendment does not apply to private universities such as Harvard, Penn and MIT. So what about punishing students who march through their campuses advocating the genocide of Jews?
Such activity may be prohibited by Title VI of the 1964 Civil Rights Act which prohibits racial, color and national origin-based harassment and intimidation of students at private universities receiving federal funds. Title VI also requires the affirmative protection of students against such harassment and intimidation, which may go beyond what the First Amendment requires.
3. But what about academic freedom? My answer is that, even if the First Amendment does not technically apply, private institutions of higher education should be governed by academic freedom norms grounded on the First Amendment. They are not intellectual safe spaces concerned with protecting students from being offended; instead, students should be pushed intellectually.
On the other hand, academic freedom norms dictate that conduct must never interfere with the institution’s educational mission. Harassment and intimidation do in fact constitute such interference as well as being conduct. So is physically preventing invited speakers—whatever their political views–from addressing student groups. Such conduct goes well beyond being offensive and can violate Title VI when it occurs at a private university. And if we’re dealing with a public university governed by the First Amendment, this conduct can and should be punished by university officials and by law enforcement through suspension, expulsion and criminal prosecution.
4. One final takeaway: I want to emphasize the crucial difference between what is legal and what is moral and ethical, a difference that is all too often not taken account of, especially by non-lawyers. Constitutionality is not the same thing as morality. Just because one has a First Amendment or academic freedom right to speak out or protest in a particular way does not mean it is moral or ethical to do so. The First Amendment is not a shield from moral criticism and private censure.
The Harvard, MIT and Penn presidents could have emphasized that their “context” responses were primarily legal in nature and that students marching through campus advocating the genocide of Jews act in a clearly reprehensible and immoral way. They apparently did not do so.
In addition, these presidents almost certainly would have answered the legal question differently if it had involved hypothetical white students advocating the lynching of blacks, thus exposing the underlying hypocrisy of their position: the double standard that Bret Stephens identified so eloquently in the New York Times several weeks ago.
IV. Conclusion: where do we go from here?
The First Amendment gives us room to fight against Jew hatred in politics and in the marketplace of ideas without government interference. Jews will need their usual thick skin to do so effectively. At the same time government must stand with us and declare that Jew hatred is not acceptable any more than race, sex-based and sexual orientation hatred and discrimination are acceptable. This kind of declaration of support by government does not violate the First Amendment because it is not censorship.
Thank you.
Nahmod Law 