Social media harassment and the first case of Tuesday night’s case: The dissent of the U.S. Supreme Court questioned by two lower courts

The justices of the US Supreme Court appeared uncertain as they sought to craft a new rule for dealing with social media.

If this sounds familiar, that’s because when Trump was president he used his personal account to communicate with the public and blocked his critics. Two lower courts ruled that this was illegal before he left office.

There were two school board members dealing with the first case of Tuesday. They blocked two persistently critical parents from their social media pages, and the parents sued, contending the school officials had used their government authority to violate their First Amendment right of free speech.

Representing the school board members, lawyer Hashim Mooppan told the justices that the social media pages were extensions of the board members’ campaign pages and thus were purely personal because the state had no control over them.

That prompted Justice Samuel Alito to ask, “What if you showed a Facebook page to a thousand people and 999 of them would think that this is an official page? Under your test, that wouldn’t matter?”

That didn’t satisfy her. “I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account” she said. “It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”

On the Use of Social Media Pages in School Business Discussion: Insights from Justice Alito, Mooppan, Coney Barrett, and the Port Huron Case

Mooppan said that these were not government social media pages. They were campaign pages. “My clients were elected officials who have to run for re-election. So what they were doing is what incumbent officials all over the country do as a regular matter. They talk to their followers about what a good job they’ve done and why they should be re-elected. They do that on their personal social media pages.

School board members were asked if their pages were used for school business. Why doesn’t that transform their pages into a place where the public’s business is being done? Mooppan replied that school business could just as well have been discussed in the board members’ backyards, or for that matter, at a campaign event that is open only to fellow Republican or fellow Democratic party members.

Justice Amy Coney Barrett said it was difficult when an official can define his own authority. “My law clerk could just start posting and say this is the official business of the chambers, right?” she asked.

Lawyer Mooppan replied, somewhat inscrutably, that “It becomes harder the higher up you go in the chain because it’s harder to identify a superior who can tell you what to do.”

Pamela Karlan, a lawyer for the critics of the school board, contended that the parents were denied access to important information about the public school system that is only available on the board members’ personal pages.

Justice Alito inquired about whether blocking a critic from a social media page was different than a public official telling a critic to call his office.

Karlan said that when a public official is clearly off duty, they don’t do their job. She said that if they say they are doing their job, they are state actors and their page is not solely personal.

Karlan replied that there would be “no meritorious constitutional claim” the uninvited reporters would “have a right to come to your dinner … as opposed to you don’t allow people to show up at press briefings altogether.”

She argued that a public official can’t ignore the citizens’ First amendment rights when he or she talks about public business on social media.

A pair of important cases testing the ability of public officials to block critics from their own personal social media pages are before the Supreme Court.

But in the Port Huron case, the 6th U.S. Circuit Court of Appeals ruled that Freed’s Facebook page was personal, that he did not use his government authority to maintain it and that, therefore, he was not using his office to block Lindke. Lindke’s speech was not suppressed by the state’s authority.

Lindke says that he began posting comments on Freed’s page at the beginning of the COVID-19 pandemic because he found information there that was not available elsewhere.

“One of the key aspects of this case is that Mr. Freed was talking to the public as a city manager,” Kedem says. Freed was “essentially performing his job by answering their questions about the services that the city was providing.”

Freed says that he is not an elected official and that his personal Facebook page dates back to his college years. He says that he has maintained the page at home on his personal computer and that the constituent information that he put on Facebook was already public, through the city’s communications office and local media.

“Eighty percent of the posts are my personal family photos, pictures of my dog. I’m a foodie. There is something about this Freed like to show his pictures at places he goes to eat. It is “not uncommon” to have people with “mental health challenges” target public officials, Freed observes. But he had always considered his page personal and under his control. “Had I thought for a moment that this page was public and I didn’t control it, I would never have posted photos of my little girls or my wife.”

This has been an ongoing issue with Mr. Freed, blocking and deletion people. He’s been doing it for years and years. Lindke says he is the first to challenge him on it.

Lindke has been involved in altercations with other public officials and was even carted out of a city council meeting. But lots of difficult people prevail in cases that test important constitutional principles.

Local governments were involved in the Supreme Court cases. Emphasizing that government officials have First Amendment rights too, they are asking the justices to set out a clear standard that is easy to apply so that local officials understand what the rules are and when they might be liable.

The general counsel of the International Municipal Lawyers Associations set out what she calls the “authority test.” Is the social media account owned by the local government? Does it authorize or require creation of the account, and does the account utilize government resources?

Countering that argument in the Supreme Court on Tuesday, Lindke’s lawyer, Allon Kedem, will argue that this is not enough. When public officials invoke the trappings of their office on social media, he says, they can’t suppress the speech of their critics.

“No city staff had access to my account. They never worked on my account,” Freed says. “I ran it myself, whereas in the Donald Trump case, White House staff was accessing and posting on the page. White House staff on official federal devices had access to the page. There are some pretty keynote differences.

Lindke’s lawyer says he doesn’t know how much he is paying for the position he holds ‘unfortunately’

Kedem, Lindke’s lawyer, says those are distinctions without a difference — that the Lindke case and the Trump case are the same. The Lindke case is more important, he says.

“To a lot of people in the country, the city manager of their town makes decisions that have a lot more direct effect on their lives and the lives of their family than the president,” Kedem says. People are trying to communicate with the city manager. And so, the question here is just do they get that chance.”