From the Ballot to the Block: SCOTUS Weighs Politicians’ Power to Block Constituents on Social Media

Isabelle Ortiz-LuisNews & Insights

On October 31, 2023, the United States Supreme Court addressed the extent to which public officials can use social media and whether their actions on these platforms are protected by the First Amendment.[1] The cases in question revolve around a city manager in Michigan and two school board members in California who, according to their constituents, violated the First Amendment after blocking them on social media.[2] The cases are unified by the same fundamental question: how can one distinguish whether a public official is speaking in their official capacity or their personal capacity on their social media accounts?[3] The answer to this question may be determinative in establishing how much freedom government officials have in their social media usage.[4]

The first instance involves James Freed, a city manager of Port Huron, Michigan.[5] Freed blocked constituent Kevin Lindke on Facebook after Lindke posted criticisms related to Freed’s handling of the pandemic on Freed’s profile page. According to Freed, it was his prerogative as to whether comments can live on his Facebook because it was his personal page where he posted pictures of his family, vacations, and food. [6] However, Lindke argues that Freed’s posts regarding governmental actions transformed his Facebook page into a public page, thereby invoking the protection of the First Amendment.[7] Blocking constituent voices on such a platform, according to Lindke, is an attempt to silence dissent.[8]

In the second case, Christopher and Kimberly Garnier, who had been attending school board meetings to voice concerns about race relations in the school district, resorted to social media to express their grievances.[9] They posted hundreds of comments and replies on the Facebook and Twitter pages of board members Michelle O’Connor-Ratcliff and T.J. Zane.[10] Eventually, the board members blocked the Garniers, prompting a lawsuit alleging a violation of their First Amendment rights.[11]

Lower courts arrived at conflicting judgments among the two cases given the nature of the defendants’ social media accounts. The 6th Circuit upheld the lower court’s decision, deeming Freed’s page private due to the fact that it was created before he took office, he shared many personal posts, and he self-identified as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” on his “About” page,[12] indicating that he maintained the profile in a personal capacity.[13] In contrast, the 9th Circuit, in evaluating the profile pages of California officials, determined that the school board’s pages operated in a public official capacity.[14] Unlike Freed’s, the board members’ pages were created for campaign promotion, primarily utilized for government communication, and indicated that they acted as “Government Official” profiles.[15]  The 6th Circuit thus concluded that the board members had violated constituents’ rights by blocking them.[16]

The Supreme Court spent considerable time analyzing the circuit split. The justices considered whether social media was private property or public property owned by the government.[17] Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. resisted the government’s assertion that virtual social media accounts are akin to an official’s private physical property.[18]

“It doesn’t cost anything to open a Facebook page,” said Justice Alito in court.[19] “To make so much turn on who owns the Facebook page seems quite artificial.”[20]

Other Justices emphasize ambiguities regarding whether government official’s accounts should be treated like physical property. The court debated hypothetical scenarios to determine whether running a Facebook live to address public concern is as private or public as opening a city council meeting in a backyard.[21] To address the matter further, Justice Ketanji Brown Jackson examined the theory of private property by employing a hypothetical situation.[22] She drew a parallel between a police officer, acting as a government official, who removes disruptive individuals at a public event to a government official who, also in an official capacity, prevents critics from accessing their social media in a disruptive manner.[23] Justice Jackson’s hypothetical illustrates the challenge of discerning whether these actions of exclusion, occurring within private or public boundaries, would constitute a violation of the First Amendment by government actors.[24]

The now moot case against former President Donald Trump for blocking critics on Twitter was also discussed while examining constituents’ access to information regarding elections and government operations.[25] Justice Kagan highlighted the importance of Trump’s social media during his presidency and urged that the court use this as guidance.

“[Social media] was an important part of how he wielded his authority,” said Kagan during oral arguments. “[T]o cut a citizen off from that is to cut a citizen off from part of the way that government works.”[26]

In the ongoing discourse on this topic, both sides have proposed different tests to distinguish between public and private use of social media by officials.[27] The 6th Circuit applied the “duty or authority” test, examining whether officials used their pages for official duties or exercised governmental authority in managing them.[28]  The 9th Circuit employed an “appearance and purpose” test, assessing whether government officials are representing themselves as government officials on their social media.[29]  

The justices seem inclined to adopt language closer to the “duty or authority test,”[30] but it is unclear where the Justices will draw the line that provides “robust protection for free speech and access to information, while also clearly defining how public officials may adequately separate their official and personal actions on social media.”[31] With First Amendment concerns on both sides of the issue, the unfolding dynamics of this case add a complex layer to governance within the ever-evolving landscape of social media. As the Justices navigate these nuances, the outcome is poised to shape not only legal precedent but also the intricate interplay between governmental duties and the digital age. A decision is expected by the end of June.[32]


[1] Nina Totenberg, Can Public Officials Block You on Social Media? It’s Up to the Supreme Court, NPR (Oct. 31, 2023), https://www.npr.org/2023/10/31/1208256078/supreme-court-social-media-public-officials-blocking.

[2] Id.

[3] John Kruzel & Andrew Chung, US Supreme Court Weighs if Public Officials Can Block Critics on Social Media, Reuters (Oct .31, 2023), https://www.reuters.com/legal/us-supreme-court-decide-if-public-officials-can-block-critics-social-media-2023-10-31/.

[4] Marcia Coyle, Supreme Court to Decide When Public Officials Officially Act on Social Media Pages, National Constitution Center (Oct. 30, 2023), https://constitutioncenter.org/blog/supreme-court-to-decide-when-public-officials-officially-act-on-social-media-pages.

[5] J Devin Dwyer & Patty See, Can politicians block their constituents online? Michigan provocateur appeals to Supreme Court, ABC NEWS (Oct. 30, 2023), https://abcnews.go.com/Politics/politicians-block-constituents-online-michigan-provocateur-appeals-supreme/story?id=103286239.

[6] Id.

[7] Saher Khan & Ian Couzens, Supreme Court Takes on Cases Involving Public Officials Blocking Social Media Followers, PBS (Oct. 31, 2023) https://www.pbs.org/newshour/show/supreme-court-takes-on-cases-involving-public-officials-blocking-social-media-followers.

[8] Id.  

[9] Kalvis Golde, School-Board Spat Raises Recurring Question: Can Government Officials Block You on Social Media, SCOTUSblog (Oct. 28, 2023), https://www.scotusblog.com/2022/10/school-board-spat-raises-recurring-question-can-government-officials-block-you-on-social-media/.

[10] Id.

[11] Id.

[12] Lindke v. Freed, 37 F. 4th 119 (6th Cir. 2022).

[13] Id.

[14] Coyle, supra note 4. 

[15] Id.   

[16] Id.

[17] Ann E. Marimow, High Court Struggles on Whether Officials May Block Social Media Critics, The Washington Post (Oct. 31, 2023), https://www.washingtonpost.com/politics/2023/10/31/supreme-court-social-media-block-critics/.

[18] Id.  

[19] Id.

[20] Id.

[21] Transcript of Oral Argument at 42, Lindke v. Freed, No. 22-611, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-611_1b8e.pdf.

[22] Bill Donahue, SCOTUS Swifties? Taylor Swift Gets Name-Dropped by Supreme Court at Hearing, Billboard (Nov. 1, 2023), https://www.billboard.com/business/legal/taylor-swift-supreme-court-mentions-judges-1235460962/.

[23] Id.

[24] Bill Donahue, SCOTUS Swifties? Taylor Swift Gets Name-Dropped by Supreme Court at Hearing, Billboard (Nov. 1, 2023), https://www.billboard.com/business/legal/taylor-swift-supreme-court-mentions-judges-1235460962/.

[25] Amy Howe, Justices Throw Out Trump Twitter Case, SCOTUSblog (Apr. 5, 2021), https://www.scotusblog.com/2021/04/justices-throw-out-trump-twitter-case/.  

[26] Adam Liptak, Supreme Court Weighs When Officials May Block Citizens on Social Media, NY Times (Oct. 31, 2023), https://www.nytimes.com/2023/10/31/us/supreme-court-first-amendment-social-media.html#:~:text=%E2%80%9CI%20don’t%20think%20a,how%20he%20wielded%20his%20authority.

[27] Katie Buehler, 5 Things To Know About High Court Gov’t Social Media Cases, Law360 (Oct. 30, 2023), https://www.law360.com/media/articles/1732472?nl_pk=b276ec44-0b0a-443b-8dcc-660cfff7bcfd&utm_source=newsletter&utm_medium=email&utm_campaign=media&utm_content=2023-10-31&read_main=1&nlsidx=0&nlaidx=1.

[28] Kruzel & Chung, supra note 3.

[29] Buehler, supra note 25.  

[30] Katie Buehler, Justices ‘Coalesce’ On Narrow Gov’t Social Media Use Test, Law360 (Oct. 31, 2023),

https://www.law360.com/articles/1738691?scroll=1&related=1.

[31] Michelle Quinn, Supreme Court Grapples with Fights Over Public Officials Blocking Constituents on Social Media, CBS News (Oct. 31, 2023), https://www.cbsnews.com/news/supreme-court-social-media-blocking-cases/.

[32] Id.