Supreme Court avoids key free speech question in social media cases

by Noah Feldman

There are several major social media cases facing the U.S. Supreme Court this term, all having to do with the First Amendment. The decisions the court issues will effectively create a new legal regime where none existed before. The first major issue, on the constitutionality of public officials blocking other users, shows how hard this is going to be for justices who have not yet fully understood how the architecture of social media platforms can change society.

The first set of cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, involves the question of whether a public official using social media can block a user without violating the user’s First Amendment rights. The oral argument found the justices puzzling over a question that arises in every constitutional case: whether the government has actually taken an action that is covered by some provision of the founding document.

The First Amendment only protects individuals against what the government does to them, not against conduct from private citizens. So if a public official’s social media account is deemed private by the courts, being blocked by that official cuts no First Amendment ice. If the account is in some way a manifestation of the government, then you might be able to claim that the government blocked you, thereby violating your right to free speech.

You can probably imagine the different possible answers to this question. One approach would ask whether the public official is doing their job when using the social media account. Another would ask whether a reasonable person would think that the account (or maybe the act of blocking) was done by the government. Yet another variant would consider whether the account belonged to the official before they took office and would continue to belong to them afterwards. And so forth. All of these sound plausible.

The solution is always to go back to the fundamental question of why we have the First Amendment in the first place: We want to facilitate free, thoughtful conversations among citizens about how to govern ourselves, without the state trying to determine who can speak. We also care about self-expression as an inherent good.

Now apply those values to social media platforms. They, too, are designed to facilitate collective conversation. But the basic architecture of the platforms is that they let you pick and choose with whom you want to engage. If users are nasty, offensive or just plain annoying, the platform enables you to block them. On top of that, all social media conversations, including those involving government officials, take place in a framework of rules set by the platform, not by the government. If you violate those rules, the platform can remove your posts. If you violate the rules enough, the platform can ban you — even if you’re the president of the United States. Thus, there is plenty of speech that is protected by the First Amendment but prohibited on the platforms under their community standards or terms of service.

The deep and crucial question before the Supreme Court is therefore not really whether a public official blocking a user is acting for the state. The more basic question is whether public officials should be allowed to block other users the same way everyone else can.

The oral argument touched briefly on that issue but did not sufficiently engage the core issue of whether blocking limits speech. Instead, most of the hearing focused on the comparatively superficial issue of whether it constituted state action.

Fortunately, the shallow question and the deep one can be answered in tandem. Seen against the backdrop of platform architecture, officials’ social media accounts should not be treated as free-fire zones where users can harass officials who have no choice but to take it. That doesn’t facilitate more public conversation. It makes online conversation harder and more unappealing.

What’s more, blocking another user doesn’t silence the user. It just means that I, the person doing the blocking, don’t need to hear them.

Government officials don’t have to listen to everyone, not even under the First Amendment. The government cannot, of course, ban you from speaking. But public officials may tell you they won’t meet with you. They can throw your petition in the trash. The First Amendment is about the right to speak, not to hear. Your recourse is to vote them out of office, not to get a court order demanding that they listen.

It follows that the court should adopt an extremely narrow interpretation of what constitutes state action for First Amendment purposes: actually barring a person from speaking. If you can still say your piece somewhere people can hear you, the state has not infringed on your free-speech rights.

The alternative, treating public officials’ social media accounts as a public forum where all speech is allowed, would produce a genuinely bizarre situation. The government couldn’t stop you from speaking there, but the platforms could, shutting down any speech that breaks their terms of service.

A good rule of thumb is, if a private owner controls speech in a given space, it isn’t a public forum.

Noah Feldman is a Bloomberg Opinion columnist and a professor of law at Harvard University.