About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 1 (November 13, 2023)

handle is hein.crs/govenkk0001 and id is 1 raw text is: Congressional_______ R esearch Servic Free Speech Constraints on Public Officials' Social Media Pages November 13, 2023 On October 31, 2023, the Supreme Court heard oral argument in two cases challenging public officials' social media activity, O'Connor-Ratchjffv. Garnier and Lindke v. Freed. Government actors are constrained by the First Amendment, including when they act online. As such, when the government creates a public forum online, its ability to bar people from the forum is limited by the First Amendment. If public officials use a forum such as a social media page for both private and government activity, it can be open to debate whether or how the First Amendment applies. This question has been a regularly recurring issue in the lower courts-one high-profile ruling in 2019, discussed in a prior Legal Sidebar, involved a First Amendment challenge to then-President Trump's decision to block users from his Twitter account. (Twitter has since been renamed X, but at the time periods relevant in this and other cases discussed in this Legal Sidebar, the officials had Twitter accounts.) The appeals courts in Garnier and Freed employed different legal tests to determine whether public officials' use of social media constituted state action implicating the First Amendment. The cases could have significant implications for federal officials, including Members of Congress, who operate social media pages. Legal Background The First Amendment's Free Speech Clause prevents the government from abridging the freedom of speech. The First Amendment only restricts the government. A private party's actions that burden another person's speech usually will not implicate the First Amendment. This is referred to as a state action requirement. The word state in this phrase is used in the general sense to refer to the government, including federal, state, and local governments. This constitutional requirement is reflected in the main federal statute that authorizes lawsuits against state or local officials who violate the Constitution: 42 U.S.C. § 1983. That law applies to a person who, under color of state law, deprives another person of the rights, privileges, or immunities secured by the Constitution. The Supreme Court has said this under color of law requirement is identical to the Constitution's state action requirement. The Court has recognized a variety of tests to determine whether an action was taken by the government. For example, one Supreme Court case asks whether there is a sufficiently close nexus between the State and the challenged action, so that the challenged action may be fairly treated as that of the State itself. Congressional Research Service https://crsreports.congress.gov LSB11074 CRS Legal Sidebar Prepared for Members and Committees of Congress

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Already a HeinOnline Subscriber?

Log In

profiles profiles most