The Supreme Court Gets a Social-Media Test

livemint.com:

Some lower courts have divined in the First Amendment’s penumbra a right to follow politicians on social media. On Tuesday the Supreme Court will consider whether the Constitution bars public officials from blocking constituents on their personal accounts (O’Connor-Ratcliff v. Garnier and Lindke v.

Freed). Michelle O’Connor-Ratcliff and T.J. Zane, elected school board members in California, used personal Facebook and Twitter accounts they created while running for office to campaign and inform constituents about education news.

The officials blocked two parents for making “repetitious and non-responsive comments" on their pages. The blocked parents sued, arguing the board members abridged their speech rights. The school district didn’t control the social-media accounts or spend money to maintain them, but the parents said the board members’ job-related communications converted the pages into de facto public forums.

The Ninth Circuit Court of Appeals agreed, ruling that members “acted under color of state law" because “they clothed their pages in the authority of their offices and used their pages to communicate about their official duties." Several appellate courts have adopted the Ninth Circuit’s “appearance and content" test for determining when public officials are engaging in “state action" when they block constituents on personal accounts. But this test lacks a clear basis in the Constitution or the Supreme Court’s state-action precedents. Such a broad interpretation of state action would infringe on the First Amendment rights of government officials by restricting how they can communicate with the public.

James Freed argues this point in a second case the High Court will hear Tuesday. Mr. Freed created his Facebook