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Why the Supreme Court discussed dog and baby pictures this week

In a pair of cases, the Supreme Court is debating when personal online activity becomes official state action

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A Facebook start page is shown on a smartphone.

In this Aug. 21, 2018, file photo, a Facebook start page is shown on a smartphone in Surfside, Fla.

Wilfredo Lee, Associated Press

As they prepare to hear a new case, Supreme Court justices typically read legal briefs and review past rulings.

But ahead of Tuesday’s oral arguments session, they also looked through a few government officials’ social media feeds.

The justices flipped through old posts featuring baby pictures, public meeting invites and school safety reminders to get ready for a conversation about when personal online activities become official government actions.

The Supreme Court was asked to draw a clear distinction between the two categories in a pair of cases brought by people who were blocked on social media by elected officials.

Supreme Court cases on social media

In the first case, O’Connor-Ratcliff v. Garnier, Christopher and Kimberly Garnier are seeking to regain access to Facebook and Twitter accounts belonging to two members of the Poway Unified School District school board in San Diego. The accounts were created by Michelle O’Connor-Ratcliff and T.J. Zane during their school board election campaigns and feature a variety of posts about school board activities.

The Garniers regularly put “lengthy and repetitive critical comments” on these posts, and so O’Connor-Ratcliff and Zane blocked them, which led to the lawsuit, according to The New York Times.

The second case, Lindke v. Freed, centers on a Facebook account belonging to James Freed, the city manager of Port Huron, Michigan. Like O’Connor-Ratcliff and Zane, he sometimes uses it to share official updates, but he more often posts about his family life, including his dog.

“If I thought that this was a public page, not private, I would never have posted photos of my kids. I would never have posted what I ate for dinner, you know?” Freed recently told USA Today.

Freed was sued by one of his constituents, Kevin Lindke, after Freed blocked Lindke on Facebook for making “weird” and critical comments, USA Today reported.

Freed won at the circuit court level, but O’Connor-Ratcliff and Zane lost.

Can government officials block constituents online?

The overarching question in each case is whether an elected official violates the First Amendment when he or she blocks constituents on social media. That’s the same question that was at the center of an earlier battle over then-President Donald Trump’s Twitter account.

In 2019, a federal appeals court ruled that Trump’s Twitter account was a public forum and that, therefore, constituents’ access could not be cut off.

“Had the account been private, the court said, Mr. Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment,” according to The New York Times.

Because Trump left office before the Supreme Court could hear the former president’s appeal, the justices declared the case to be moot. This year’s cases present an opportunity for the justices to address the issues that were left unresolved.

However, before the Supreme Court can say whether blocking constituents violates the First Amendment, the justices need to rule on a more preliminary question, said Evelyn Danforth-Scott, a staff attorney for the ACLU, during a Sept. 21 press call. They have to clarify what counts as “state action” by, for example, determining how many dog, baby and food pictures you’d have to post to prove that a Facebook page was a personal, rather than official account.

The court “granted review on a preliminary question of whether ... local government officials are actually involved in state action when they curate their social media profiles this way,” Danforth-Scott said.

If the Supreme Court determines that Freed, O’Connor-Ratcliff and/or Zane — or two of the three — were engaged in state action, then it would likely be left up to a lower court to reopen the debate about whether blocking a constituent from seeing that state action violates the First Amendment, according to USA Today.

How will the Supreme Court rule?

During Tuesday’s oral arguments, the Supreme Court struggled to articulate what counts as state action on social media. Even after three hours of debate, “it was not clear that a majority of the justices had settled on a clear test,” The New York Times reported.

The attorney for Zane and O’Connor-Ratcliff urged the judges to focus on whether the information being shared on social media was available elsewhere on more formal channels. A lawyer for the California parents who were blocked said the court should pay attention to the mix of posts and note how often purely personal updates appeared.

At one point in the arguments, Justice Elena Kagan acknowledged that there’s a notable difference in the online behavior of Freed and the behavior of Zane and O’Connor-Ratcliff, according to The New York Times. That difference likely explains why Freed won at the circuit court level, while the others lost.

“There are a lot of baby pictures and dog pictures and obviously personal stuff” on Freed’s page, Kagan said. “And intermingled with that there is, as you say, communication with constituents about important matters. But it’s hard to look at this page as a whole, unlike the one in the last case, and not think that surely this could not be the official communications channel.”