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SCOTUS says public officials have the right to block on social media

MARY LOUISE KELLY, HOST:

Back here in the States, the Supreme Court issued a pair of unanimous decisions today on a subject that has roiled the waters at all levels of government. The question - when do public officials, elected or unelected, violate the First Amendment by blocking people from their personal social media pages? NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: In Michigan and California, outraged citizens sued public officials who had barred them from their social media pages. In one case, two local school board members in Poway, Calif., blocked persistently critical parents from their social media pages. In one case, two local school board members in Poway, Calif., blocked persistently critical parents. And in Port Huron, Mich., a local gadfly sued the unelected city manager, James Freed, after being blocked from Freed's Facebook page. The gadfly and the city manager have very different views of reality. Gadfly Kevin Linke maintained that city manager Freed violated his right to speak by blocking him from responding to things Freed said on his page about COVID-19 policy and other matters.

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KEVIN LINDKE: Mr. Freed was putting out policy directives. He was issuing press statements, and this was the only place this information was being relayed to the community.

TOTENBERG: City manager Freed says that simply is not true, that he did answer constituent questions and point them to press releases and other sites for local information. But...

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JAMES FREED: Eighty percent of the posts are my personal family photos, pictures of my dog. I'm a foodie. I like to show pictures of where I go out to eat. Had I thought for a moment that this page was public and that I didn't control it, I would never have posted photos of my little girls or my wife.

TOTENBERG: The Supreme Court didn't decide who's right in this dispute, but it laid down guidelines for the lower courts to use in assessing the facts. Writing for the court, Justice Amy Coney Barrett said that a post that expressly invokes state authority to make an announcement not available elsewhere is official, and members of the public are entitled to make comments in response. But a post that merely repeats or shares otherwise available information is more likely personal, and the owner of the page may well be able to block critical or unwelcome comments. Still, she said that evaluating an ambiguous page like Freed's is a fact-specific undertaking in which the posts' content are the most important consideration. Does all this clarify the rules of the road in such disputes? Maybe yes. Maybe no.

AMANDA KARRAS: I think it did. I think we have a lot more clarity than we did before.

TOTENBERG: Amanda Karras is executive director of the International Municipal Lawyers Association.

KARRAS: We also have some guidance in the opinion about - you can use disclaimers if you want to. Then that will help. Justice Barrett says in the opinion if you put up a disclaimer that says, you know, the views expressed herein are my own, or, this is the personal page of so-and-so, that's going to go a long way to supporting the idea that this was a private account.

TOTENBERG: But Katie Fallow of the Knight First Amendment Institute at Columbia University is less optimistic.

KATIE FALLOW: I do think that they tried to create a simpler test.

TOTENBERG: But she adds that it remains to be seen how workable the new test is, especially when a public official mixes personal and official material on his or her page. Her advice to public officials is succinct.

FALLOW: You should keep two accounts. Keep your personal stuff personal and your official stuff official.

TOTENBERG: If all this sounds familiar, that's because when Donald Trump was president, he used his personal Twitter account to communicate with the public and blocked his critics. Before he left office, two federal appeals courts ruled that was illegal. Port Huron city manager Freed maintains that his case was and is entirely different because Trump had helped from the White House staff in managing his account.

FREED: No city staff ever had access to my account, whereas in the Donald Trump case, White House staff was accessing and posting at the page.

TOTENBERG: Freed's case, as well as the companion case from California, will now go back to the lower courts, where judges will have to start using the guidelines laid down today.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF JAY-Z SONG, "COMING OF AGE (FEAT. MEMPHIS BLEEK)") Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.