A pair of Supreme Court cases asking what limits the First Amendment places on government officials who use social media seemed to perplex the justices on Tuesday.
The arguments in O’Connor-Ratcliff v. Garnier and Lindke v. Freed featured a cacophony of questions about cat pictures, spontaneous grocery store conversations, and a simply dizzying array of proposed legal rules — none of which seemed likely to fully inform public officials what they may and may not do online.
As the Court said in Jackson v. Metropolitan Edison (1974) — a case decided long before anyone had even uttered the word “Twitter” — “the question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.”
As the Justice Department argued in its brief, when past cases have asked whether someone may be excluded “from a forum … the existence of state action generally depends on whether the government itself owns or controls the property to which access has been denied.”
As Chief Justice John Roberts quipped, there is no physical component to a Facebook page — it’s just a “gathering of protons” — so it seems quite odd to apply traditional concepts of property to virtual space.
The United States Court of Appeals for the Ninth Circuit, which heard the O’Connor-Ratcliff case, preferred a more flexible test that, among other things, asks whether a government official appeared to be acting within the scope of their job when they posted online.
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This is the best summary I could come up with:
A pair of Supreme Court cases asking what limits the First Amendment places on government officials who use social media seemed to perplex the justices on Tuesday.
The arguments in O’Connor-Ratcliff v. Garnier and Lindke v. Freed featured a cacophony of questions about cat pictures, spontaneous grocery store conversations, and a simply dizzying array of proposed legal rules — none of which seemed likely to fully inform public officials what they may and may not do online.
As the Court said in Jackson v. Metropolitan Edison (1974) — a case decided long before anyone had even uttered the word “Twitter” — “the question whether particular conduct is ‘private,’ on the one hand, or ‘state action,’ on the other, frequently admits of no easy answer.”
As the Justice Department argued in its brief, when past cases have asked whether someone may be excluded “from a forum … the existence of state action generally depends on whether the government itself owns or controls the property to which access has been denied.”
As Chief Justice John Roberts quipped, there is no physical component to a Facebook page — it’s just a “gathering of protons” — so it seems quite odd to apply traditional concepts of property to virtual space.
The United States Court of Appeals for the Ninth Circuit, which heard the O’Connor-Ratcliff case, preferred a more flexible test that, among other things, asks whether a government official appeared to be acting within the scope of their job when they posted online.
The original article contains 1,401 words, the summary contains 249 words. Saved 82%. I’m a bot and I’m open source!