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Social media platforms like Facebook and Elon’s Plaything have been touted as today’s town square. It has bridged many gaps — how else would the common people be able to know which celebrities are beefing with each other in real time? For the folks more interested in civics than celebrity, social media has also been a way to interact with, praise, and shit talk politicians. There’s been a gray area on what the Constitution has to say about how politicians interact with their constituents on social media. For example, could blocking a follower be a First Amendment violation? We now have a little more guidance when it comes to answering that. From Reuters:
The U.S. Supreme Court, addressing free speech rights in the digital age, decided on Friday that government officials can sometimes be sued under the Constitution’s First Amendment for blocking critics on social media.
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Under the new test, officials are considered to have engaged in governmental action if they had “actual authority to speak on behalf of the state on a particular matter” and “purported to exercise that authority in the relevant posts.”
For a concrete example, let’s look to a classic tweet involving Ron Perlman and Ted Cruz:
Before the recent cases, would it have been fair game for Cruz to respond to the challenge by simply blocking Perlman? Yes. Cowardly, but all above board. Were he to do that today, it looks like he would be violating the Constitution. The spat was rooted in politics — at the time, the U.S. Soccer Federation decided that they wouldn’t punish players for protesting during the national anthem. If Ted Cruz’s Twitter bio was the same as it is now (“Representing the great state of Texas in the U.S. Senate”), it would be easier to make the argument that Ted blocking Perlman was a free speech violation — doing so would effectively censor Perlman and his support of Black Lives Matter.
As we inch closer to November, you should expect the bright line on what politicians can and can’t do being tested. We aren’t telling you to go make a Truth Social account and give Trump a piece of your mind after one of his caps-lock rants, but we are saying you might have a case if he blocks you afterward!
US Supreme Court Sets Test For When Officials Who Block Social Media Critics Can Be Sued [Reuters]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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