Thread by @Thomas_A_Berry

When does a public official’s social media activity constitute state action subject to the limits of the First Amendment? That is the question raised in two cases decided by the Supreme Court today.

In Lindke v. Freed, the unanimous Supreme Court (in an opinion by Justice Barrett) clarified the relevant questions necessary to determine whether a public official’s social media post is state action.

supremecourt.gov/opinions/23pdf…

The legal test is: Did the official have authority to speak on behalf of the government, and was the official purporting to exercise that authority in the social media post? If the answer to both questions is yes, an official must abide by First Amendment limitations.

In both Lindke and its companion case, O’Connor-Ratcliffe v. Garnier, the Court declined to apply this test in the first instance or to decide the ultimate outcome of the cases. Instead, the Court sent both cases back down so that the courts below could first apply this new test.

The Supreme Court’s approach strikes a reasonable balance between the general public’s right to access official state communications and the right of government officials to exercise their own private speech.

The Court sensibly declined to suggest that social media sites themselves can become state actors when they are used by government officials, which was the focus of the amicus briefs that Cato filed jointly with NetChoice, CCIA, and Chamber of Progress.

cato.org/legal-briefs/l…

Most notably, the Court also stressed that when government officials act in their private capacity, they have a First Amendment right of “editorial control over speech and speakers on” their own “properties or platforms.”

The Court is currently considering the scope of the First Amendment’s protection of editorial control in the two pending NetChoice cases out of Florida and Texas.

It is a good sign for the platforms in the two NetChoice cases that the unanimous Supreme Court today reaffirmed that the right to moderate user speech on private social media pages is an example of First Amendment editorial freedom.