ADF: Social media isn't a free pass to suppress speech

WASHINGTON – Alliance Defending Freedom attorneys filed a friend-of-the-court brief Tuesday with the U.S. Supreme Court in O’Connor-Ratcliff v. Garnier, a lawsuit involving government censorship on social media. ADF attorneys filed the brief as co-counsel with Brown Fox PLLC on behalf of the Manhattan Institute, a nonprofit public-policy research foundation with the mission to dev­elop and disseminate new ideas that foster economic choice and individual responsibility.

The case involves two southern California school board members who used Facebook and Twitter to communicate government information to the public, and two parents who were censored and ultimately blocked by the school officials after criticizing the officials on those accounts. The parents sued over the violation of their First Amendment rights, and a lower court and the U.S. Court of Appeals for the 9th Circuit both agreed that the parents’ speech had been suppressed by government action.

“Social media is the modern public square, and government officials need to be held responsible when they act in their public capacity to suppress speech,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “Government officials cannot hide behind technology to pick and choose which viewpoints are allowed on issues of public concern. At the same time, government officials retain their own free speech rights to voice their personal views. We urge the court to hold government actors responsible when the purpose and appearance of their social media interactions reflect government censorship, while protecting their freedom of speech when using social media for private purposes.”

The brief explains that allowing government officials who use social media to censor unfavorable viewpoints hinders the ability of groups like the Manhattan Institute to “promote uninhibited debate on important issues.” But the brief also notes that government officials are citizens with their own First Amendment rights that are worthy of protection.

“Using social media is not a free pass to suppress speech. Online forums promote a free and open exchange of ideas,” said ADF Senior Counsel and Senior Vice President of Corporate Engagement Jeremy Tedesco. “Social media gives Americans the ability to access the public square anywhere, at any time, from the palm of their hand. That online public square moves fast, and it’s vital for the Supreme Court to uphold First Amendment protections for all citizens, including government officials. When elected officials participate in that public square in their official capacity, they cannot censor viewpoints they don’t like.”

“In the brave new digital world, it’s important for citizens to know when public officials are bringing the full weight of government authority to bear rather than just speaking for themselves,” added Ilya Shapiro of the Manhattan Institute. “Thankfully, judges don’t need to invent any new jurisprudence, because traditional state-action doctrine and forum analysis give us everything we need to determine when public officials’ social-media posts implicate the First Amendment.”

“Essential to the American way of life is the right to freely engage in public discourse,” said Cort Thomas of Brown Fox PLLC. “Whether in the town square or the digital square, Americans should not face reprisal from the state for exercising their First Amendment right. We are honored to speak into this critical constitutional issue.”

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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