The Supreme Court Gets a Second Shot at an Important First Amendment and Social Media Issue

The May 10, 2021 post The Donald Trump Twitter Case: Vacated and Dismissed as Moot by the Supreme Court reported how the U.S. Supreme Court dismissed Knight First Amendment Inst. at Columbia University v. Trump, in which the Southern District and Second Circuit found that then-President Donald Trump’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. In its one paragraph decision, the Supreme Court failed to address the appeal on its merits, instead dismissing the case as moot because Donald Trump was no longer President. The Supreme Court now has another opportunity to consider whether public officials violate the First Amendment by blocking certain members of the public from commenting on the officials’ publicly accessible social media pages thanks to the Ninth Circuit case of Garnier v. O’Connor-Ratcliff.

In Garnier, two public officials from a school district’s Board of Trustees used their social media pages to communicate with constituents about public issues before and after they were elected to the Board of Trustees. Parents of children in the school district frequently left lengthy, critical and/or repetitive comments on these officials’ social media pages (Twitter and Facebook), prompting the officials initially to delete or hide the comments before outright blocking the parents from providing comments on the social media pages. The district court held a bench trial and ruled that the officials had violated the parents’ First Amendment rights by blocking them from commenting on the officials’ public social media posts. The Ninth Circuit affirmed.

In its July 27, 2022 decision, the Ninth Circuit found that the Board of Trustee members “acted under color of state law by using their social media pages as public fora in carrying out their official duties. The appeals court also held that the officials’ restrictions on the parents’ speech were “not appropriately tailored to serve a significant governmental interest” and, therefore were invalid.

On October 4, 2022, the public officials filed a petition for a writ of certiorari with the United States Supreme Court in an effort to reverse the decision of the Ninth Circuit. The response to the petition is to be filed by December 13, 2022. It will remain to be seen though if the Supreme Court will grant the petition or avoid reaching this important – and recurring – issue for a second time.

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For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.

Rob Nussbaum

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.

For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.