Expect a Standard, Not a Rule, in the State Action Social Media Cases

Yesterday the Supreme Court heard oral arguments in two cases that pose more or less the same question: under what circumstances, if any, does a government official's blocking of a constituent's access to the official's nominally private social media account constitute "state action" that could violate the First Amendment? If the government runs a so-called designated public forum at which it allows the public to speak, it cannot censor disfavored views. Indeed, the Supreme Court's cases (e.g., this one) regarding access to government property hold that even in a nonpublic forum, where reasonable content discrimination is permitted, viewpoint discrimination is not permitted. Thus, in both O’Connor-Ratcliff v. Garnier and Lindke v. Freed, the core issue appears to be whether the nominally private social media accounts should be treated as de facto government accounts.

It is possible to imagine the Court ruling that there is state action in O'Connor-Ratcliff but not in Lindke because James Freed--the city manager of Port Huron, Michigan and the respondent in the second case--used his Facebook page chiefly for personal matters, whereas Michelle O'Connor-Ratcliff and T.J. Zane--the two Poway, California school board members and petitioners in the first case--transformed their campaign Facebook and Twitter accounts into what the Ninth Circuit thought were all but official venues for doing their government jobs.

Indeed, based on the oral arguments, if I had to predict an outcome, that's my best guess. But it's only a guess. The Justices were understandably more interested in articulating a standard for judging how and when a nominally personal social media account becomes a vehicle of state action. It is possible to imagine them settling on a standard that splits the cases in the way I've suggested but also possible to imagine the Court finding no state action in either case or state action in both cases. Just about the only juxtaposition that seems highly unlikely is a finding of state action in Lindke but not in O'Connor-Ratcliff.

I'll now offer a few observations about the two oral arguments. Although I don't have a strong view about what standard the Court should adopt, I do think it somewhat useful to see the issue in broader context, which I'll attempt by invoking some other lines of cases that might not at first seem obviously relevant.

(1) At the outset, it's notable how little the Justices' ideological priors seemed to matter. In recent years, conservatives have been more likely to argue that social media companies themselves censor them--a claim that will no doubt inform cases the Court will hear later in the Term. However, a government official claimed to be using their social media account as a vehicle of state action could be a Democrat or a Republican. The leading case before these two arrived at SCOTUS involved former President Trump's use of his Twitter account--which the Second Circuit found to be state action in 2019. Long-term, there is no obvious partisan or ideological valence to these cases. Each side has excellent lawyers. In O'Connor-Ratcliff, the petitioners' lawyer is Hashim Mooppan, who is conservative, while the respondent's lawyer is Pam Karlan, who is liberal, but that seems to be almost accidental.

(2) As I noted above, it can be argued that the Facebook page in Lindke is primarily personal, but that raises a question that interested several Justices: whether to evaluate a social media account as a whole or post by post? The answer should probably depend on whether the issue is deleting or blocking. If a user posts an offensive comment on a government official's post about her cat on a mixed-use account and the official deletes the comment, that would not seem like state action. However, if the account owner responds (perhaps to repeated such comments on the pictures of cats) by blocking the user, that could be state action given that other posts do concern official government business.

(3) The lawyers and Justices seemed to agree that evaluation of blocking on a mixed-use account should not be strictly a matter of numbers or percentage. So even if 80% or some other large percentage of the posts are personal, one still might conclude that blocking is state action. That makes sense and calls to mind a thought about obscenity, defined by the Court to include a requirement that the work, taken as a whole, lack "serious literary, artistic, political, or scientific value."

Suppose an otherwise obscene 15-minute pornographic film is sold as part of a set that also includes a performance (even by the same actors who appear in the pornographic film, but now fully clothed) of The Merry Wives of Windsor and a 3-hour-long reading (again by one of the fully clothed porn actors) of excerpts of Plato's Republic. Even though the Shakespeare and Plato account for a very high percentage of the minutes, is there any doubt that the work, even taken as a whole, should be judged obscene--and not just because the insertion of the serious material is an obvious effort to evade the obscenity definition? The key point is that the obscenity--like an individual post on a social media account--is rather cleanly severable from the "serious" material.

(4) Throughout both oral arguments, the lawyers and the Justices suggested or resisted analogies between social media interactions and interactions in the physical world. A government official who is stopped at a grocery store and answers a constituent's question or (perhaps because the official is in a hurry to get home and make dinner or perhaps because the official recognizes the constituent as a critic of the official's policy positions) declines to answer the question should not be deemed to engage in state action. Is maintaining a mostly personal social media account on which an official occasionally posts official matters like running into people at the grocery store? If not, what is it like?

(5) Such questions struck me as both inevitable--given the role of analogical reasoning in a legal system built on the common-law method--and limited in their utility. Social media are like interactions in the physical world in some respects but not others. One can catalogue the similarities and differences, but in the end one must make some normative judgments.

(6) To my mind, Mahanoy v. Area School Dist. v. B.L., the 2021 case in which the Court ruled in favor of a cheerleader who was disciplined for her derogatory Snapchat posts, is highly relevant, even though it was not cited in any of the briefs in either case by the petitioners, respondents, or SG as amicus. (It's possible one of the other amicus briefs cited Mahanoy. I didn't check.) An important question in Mahanoy was what counts as "on campus" in a world of social media, just as an important question in yesterday's cases is what counts as "on the job" in the social media world.

Mahanoy is both encouraging and discouraging in this regard. It's encouraging in that, as appeared to be true in yesterday's arguments, it did not produce an ideological divide. The result was 8-1, with all of the 8 joining in the majority opinion. Justice Thomas dissented, largely on originalist grounds, rather than on the ground that he disagreed with the analogies and dis analogies the Court drew. 

But Mahanoy was also a bit discouraging in that it provided fairly vague guidance. One might attribute the multi-factor test the Court announced to the fact that Justice Breyer--who is an old-fashioned balancer--wrote the majority opinion. However, as I noted, everyone other than Justice Thomas joined. The use of a standard rather than a rule seems much more the result of the nature of the case. Schools should not be able to regulate every aspect of students' lives; neither is everything that occurs physically off campus beyond the legitimate reach of schools; numerous considerations are relevant to where to draw the line in any given case; thus we end up with a multi-factor standard rather than a bright-line rule.

I would be surprised if the Court does not end up doing something similar in the cases argued yesterday.