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The Supreme Court on the fate of the block button for public officials

JUANA SUMMERS, HOST:

At the Supreme Court today, the justices tackled cases that test the ability of public officials to block critics from their social media pages. It's a practice that then-President Trump often engaged in. NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The usually quite certain justices of the Supreme Court today seemed to be uncertainly groping their way as they sought to craft a new rule for dealing with the social media age. The first of today's cases dealt with two local school board members in Poway, Calif., who blocked two persistently critical parents from their social media pages. Representing the school board members, lawyer Hashim Mooppan told the justices that the social media pages were extensions of the board members' campaign pages, and thus were purely personal because the state had no control over them. That prompted this question from Justice Alito.

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SAMUEL ALITO: What if you showed a Facebook page to a thousand people and 999 of them would think that this is an official page? Under your test, that wouldn't matter.

TOTENBERG: No, replied lawyer Mooppan, it should not matter.

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ELENA KAGAN: That means President Trump's Twitter account was also personal.

TOTENBERG: That's Justice Kagan raising the issue of Trump's practice of blocking critics on his Twitter account.

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HASHIM MOOPPAN: Yeah. I think that was a harder question, Your Honor, because there was, in that case, use of a government staffer.

KAGAN: I don't think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account. It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.

TOTENBERG: At the local level, Justice Sotomayor observed, if a public official's account is deemed personal...

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KAGAN: He could exclude Muslims, Jews, whoever he wanted to because that's a social account.

TOTENBERG: Several justices asked about school board members devoting their pages to school business. Why doesn't that transform their pages into a place where the public's business is being done? Lawyer Mooppan replied that school business could just as well have been discussed at the board members' backyards or, for that matter, at a campaign event that's open only to fellow Republican or Democratic Party members. Justice Barrett followed up.

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AMY CONEY BARRETT: I think it's very difficult when you have an official who can, in some sense, define his own authority. You know, my law clerk could just start posting things and say, this is the official business of the Barrett chambers, right?

MOOPPAN: It becomes harder the higher up you go in the chain because it's harder to identify a superior who can tell you what to do.

TOTENBERG: Arguing on behalf of the board critics, lawyer Pamela Karlan contended that the parents were being denied access to important information about the public school system that's only available on these board members' pages. Justice Alito asked why this is different from a public official at the grocery store deflecting a critic by telling her to call his office.

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PAMELA KARLAN: When they are clearly off duty - that is, you know, pushing the shopping cart down the aisle - arguably, they're not doing their job. But if they say they're doing their job, then, yes, I would say the starting point is they're state actors.

TOTENBERG: Justice Kavanaugh posed this question.

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BRETT KAVANAUGH: If you're a White House press secretary and you have dinner at your house and you invite over certain members of the press and not other members of the press, is that state action?

KARLAN: There would be no constitutional claim by anybody, no meritorious constitutional claim that they have a right to come to your dinner - as opposed to you don't allow people to show up at press briefings altogether.

TOTENBERG: Karlan contended that a public official cannot kick constituents off his or her social media page without violating the constituents' First Amendment rights. That's what makes this case so hard, opined Justice Kagan. There are First Amendment rights all over the place.

MARY LOUISE KELLY, HOST:

NPR's Nina Totenberg. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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