James Freed opened a Facebook account in 2008. Like millions of Americans, he received comments and criticism on it.
When they bothered him, he deleted them and blocked the authors.
However, Freed is the manager of Port Huron, a city of 30,000 people in Michigan.
One of the blocked followers reported that his actions were violating his freedom of expression and his case reached the United States Supreme Court.
Another similar case regarding the Poway (California) school board also escalated to the High Court.
The nine judges have unanimously handed down two rulings this Friday in which they unanimously indicate that a public official can block his followers if he makes personal use of the account, but not if he exercises his authority over it.
Although these are local positions with little public visibility, the rules established by the Supreme Court will affect the accounts on Facebook, X and other social networks of all public officials.
In both cases there are echoes of the lawsuit that was filed against Donald Trump when he was president for blocking some of his followers on Twitter.
A federal court ruled against Trump, but when the case reached the Supreme Court he was no longer president and the judges declined to rule.
Politicians around the world use social networks to communicate with citizens and it is not uncommon for them to block followers they consider annoying, although obviously the Supreme Court's doctrine only affects the United States.
In Spain, some politicians have been especially combative online while holding public office, such as Pablo Iglesias when he was vice president or, more recently, Transport Minister Óscar Puente.
Both have caused controversy by blocking critical accounts, just as the president of the Community of Madrid, Isabel Díaz Ayuso, did with relatives of those who died in nursing homes during the pandemic, as reported.
In Spain, these cases have not reached the courts.
The Supreme Court of the United States says that if Freed were only a private citizen, there would be no discussion, because the freedom of expression enshrined in the First Amendment of the United States Constitution is binding only on public powers.
Freed claimed that he used Facebook privately, but in his account he defined himself as “Lucy's Dad, Jessie's Husband and City Manager, Administrative Chief of the citizens of Port Huron.”
When the pandemic began, Freed posted messages about it.
Some were personal and others contained information related to his work.
Facebook user Kevin Lindke commented on some of the posts, unequivocally expressing his discontent with the city's management of the pandemic.
At first, Freed deleted his comments and eventually blocked him.
Lindke went to court, which ruled in favor of Freed, considering that the account was private.
Now it has reached the Supreme Court, which does not finish deciding on the specific case, but rather establishes the criteria.
“A public official who prevents someone from commenting on his or her social media page incurs state action (...) only if the official had actual authority to speak on behalf of the State on a specific matter, and intended to exercise that authority by speaking in the relevant publications on social networks,” says the ruling, which sets this as the criterion to follow.
A difficult border
The Supreme Court reasons that the fact that someone holds a public office is not the determining factor, but rather the use they make of the social network.
“The distinction between private conduct and state action is based on substance, not labels: private persons can act with the authority of the State, and state officials have private lives and their own constitutional rights, including First Amendment rights. to talk about their work and exercise editorial control over the discourse and participants in their personal networks,” he says.
The judges admit that the border is difficult to draw in many cases, but they indicate that the plaintiff has not proven that the municipal manager was exercising his public authority in his messages.
Give an example outside the digital world.
If the president of a school board announces at an assembly that Covid restrictions are being lifted, he is acting in his office, but if he later discusses it with some friends at a barbecue at his house, he is acting in his office. private sphere.
“Although the content of the announcement is the same, the context differs: an official meeting versus a private event,” the ruling says.
The ruling, signed by Judge Amy Coney Barrett, says that everything would have been clearer if Freed had put a warning (“this is a personal account”, “the opinions expressed are mine alone”…).
However, he did not identify the account as either personal or official.
The judges give examples.
If a mayor tweets, “Pursuant to City Ordinance 22.1, I am temporarily suspending enforcement of the alternative parking rules,” he would be invoking and exercising his authority, and would not be able to block or delete comments.
But if he limits himself to linking to the municipality's page where the decision is, he would be acting in the private sphere.
Not all examples are so clear.
Before them, the Supreme Court points out: “Cases that are difficult to classify require being aware that an official does not necessarily intend to exercise his authority by the mere fact of publishing information on a matter within his jurisdiction.
He may publish information related to his work for a variety of personal reasons, from a desire to raise public awareness to promoting his re-election prospects.
On the other hand, many public officials possess a broad portfolio of government authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives.
However, these officials also have the right to speak on public matters in their personal capacity.”
Delete and lock
The judges do include a warning: blocking is a more relevant step than deleting a comment.
By blocking a user, they are prevented from commenting on any message.
In that case, therefore, it would be violating the citizen's freedom of expression if there were any message in which he exercised his authority.
The Supreme Court asks the lower court to review the case in light of this doctrine and if it differs from the criteria it applied, to decide the case again.
In the case of the Poway (California) school board, the judges have issued another brief three-page ruling in which they conclude that a different doctrine was applied to the one they have now established and, therefore, they annul the ruling and ask the court lower to reconsider the case.
The United States Supreme Court is yet to issue another much more far-reaching ruling on the contours of freedom of expression on social networks.
In two parallel cases on Florida and Texas laws, what is at stake is the content moderation policy.
The two parties, the States and the platforms, wrap themselves in the flag of freedom of expression that enshrines the First Amendment of the Constitution against state interference.
Texas and Florida consider that banning messages and users violates it;
The platforms, represented by sector associations, denounce that it is these state laws that violate it by preventing them from choosing what to publish on their networks.
For States, social networks are more like telephone companies (they cannot interfere with calls);
for the platforms, more like newspapers (the editor chooses what is published and what is not).
In an oral hearing in February, the judges seemed inclined to respect the right of networks to impose their content moderation policies and block the messages and users they consider.
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