Novel legislation passed the Colorado legislature to allow elected officials to block a user on social media accounts but Supreme Court will weigh in.
According to a Governing article, a bill signed into law this year in Colorado will allow public officials to block individual users on their personal social media accounts. This is a question that has loomed over state and local elected officials, school board members, even former President Donald Trump. After a number of turns in state courts, the matter will finally be taken up by the U.S. Supreme Court for the 2023-2024 term.
Two cases will be considered on the issue and they are Lindke v Freed, originating in Michigan and O’Connor-Ratcliff v Garnier, a case from California. The highest court will be deciding whether a public official violates the First Amendment when they block people from their personal social media accounts where they communicate about their official job and work but do not do so pursuant to any governmental authority or duty. The main clarifying point is likely to circle around what exactly constitutes a “state action” verse a “private activity” in the world of social media. Other considerations from prior appeals in both cases focused on topics of discussion as well as funding and management of the accounts.
Proponents of the bill in Colorado likened the move to block a social media user from ones account as similar to removing an unruly audience member from a town hall or someone from the front lawn of an elected officials home. Democratic legislator and co-sponsor of the Colorado bill, Leslie Herod, says it’s not as straightforward when considered in the full context of historic rules around obedience in public deliberations.
“It wasn’t contemplated by the Founding Fathers,” she said of social media. “If someone comes into the (House) gallery and yells obscenities, we can ask them to leave. If they come to our town halls, we can do the same. So social media — we have to figure out how to manage that.”
First Amendment advocates voiced concerns in almost all of the lower court cases with common sentiments such as those of senior counsel at the Columbia University’s Knight First Amendment Institute.
“The likely result is that more and more elected officials will claim that their social media accounts are private, even when they are functionally indistinguishable from official accounts. This fundamentally undermines core democratic principles.”
With dueling lower court rulings, the matter will come under consideration this coming Supreme Court session and ultimately decide the fate of the new Colorado statute. Neither case has been scheduled yet for the October court calendar.