Supreme Court: Public Officials Who Censor Critics on Social Media Violate 1st Amendment…Sometimes

Craig Bannister | March 15, 2024
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Public officials who censor critics on social media can – under some conditions – be held liable for violating their critics’ First Amendment rights, the U.S. Supreme Court ruled Friday.

The ruling settled one question, but raised others, because it requires courts, in future cases, to make subjective, nuanced, interpretive decisions about the nature of the specific post by the public official being sued.

The Supreme Court’s decision involves two, contradictory, lower-court decisions, both of which were remanded back to their respective circuit courts for consideration based on the new standard, as Amy Howe explains on SCOTUSblog:

“The Supreme Court on Friday ruled that public officials who post about topics relating to their work on their personal social media accounts are acting on behalf of the government, and therefore can be held liable for violating the First Amendment when they block their critics, only when they have the power to speak on behalf of the state and are actually exercising that power.”

“A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability,” Justice Amy Coney Barrett warned, writing the opinion for the Supreme Court’s unanimous decision.

Each court case will require “a fact-based” determination of the disputed social media post’s “content and function.”

Thus, in a case alleging a First Amendment violation by a public official on social media, a court must determine both whether the government official had the authority to speak on behalf of the government and was speaking on behalf of the government on his or her personal social media account.

Additionally, “The nature of the technology matters to the state-action analysis,” Justice Barrett says in the court’s opinion. Platforms, such as Twitter (now, X.com) and Facebook differ in the type of censorship powers they give the user/government official, such as the ability to block critics from posting, delete critical posts, or even prevent critics from viewing the government official’s posts in the future.

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