The Supreme Court has a big task this term: deciding the constitutional rules of the road for social media. But the justices’ first attempt at plotting that course seems to have left them driving in circles.
The court heard arguments Tuesday in the first of several cases to be decided in the months ahead that will have a massive impact on the rights and responsibilities of social media platforms and users. At issue: When do private and campaign social media posts by public officials constitute state action? It’s a crucial line for the court to draw because it will determine when an official’s decision to block members of the public from seeing their posts rises to the level of a First Amendment violation.
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And while the cases involve local officials in Michigan and California, a far more prominent figure loomed large in the courtroom.
“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 [his Twitter] account,” Justice Elena Kagan said during arguments, pointing out the elephant in the room.
She was, of course, referring to Donald Trump’s ubiquitous use of the platform, now known as X, while in office. That is, before he was kicked off in 2021 for inciting violence, and then reinstated by Elon Musk the following year. These days he largely confines his false and sometimes violent rhetoric to his ironically named Truth Social platform.
But during his presidency, Twitter “was an important part of how he wielded his authority,” Kagan said. “And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”
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This issue first landed before the court a few years back when it was asked to decide if Trump violated the First Amendment rights of citizens whom he blocked from his account during his presidency. But the justices avoided that thorny issue after Trump lost the 2020 election and the case became legally moot.
But in real life, the issue has only loomed larger as X, Facebook, and other social media platforms have become central to the way public officials communicate, from the smallest town halls to the White House. And much like on Trump’s old Twitter account — which was essentially a personal one before he began using it for presidential business — it’s often hard to tell mere personal musings from speech on behalf of the government.
The justices seem well aware of how hard drawing that line will be.
An attorney arguing on behalf of two school board members in California who blocked critics from their social media accounts said the officials didn’t violate the First Amendment because they personally controlled their posts, not the government.
“So that means President Trump’s Twitter account was also personal?” Kagan interjected.
“I think that’s a harder question,” the attorney, Hashim Mooppan, said.
To make things more complicated, the justices noted, public officials have First Amendment rights too, and that includes the right to control their own platforms and who accesses them when they fall under their personal and campaign capacity.
“That’s what makes these cases hard,” Kagan said. “There are First Amendment interests all over the place.”
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The questions are only going to get harder from here. This term the justices will also decide whether the Biden administration ran afoul of the First Amendment when it communicated with social media companies about their content moderation practices in an effort to tamp down misinformation on their sites. The court will also decide if states like Texas and Florida can pass their own social media regulations, aimed at prohibiting platforms from removing content based on the viewpoints of the posters.
This isn’t the first time the justices have demonstrated a wariness to venture too far into the constitutional Wild, Wild West of the World Wide Web. They bought themselves time last term on the challenges to the Texas and Florida laws by pushing them off until this term. They also sidestepped the issue of whether Section 230 of the Communications Decency Act gives social media companies broad protections against liability for the content posted on their platforms, after clearly indicating during oral arguments that they didn’t want to hand down a ruling that could, essentially, break the internet.
But at other times they’ve been willing to decide the online limits of constitutional rights, such as when the conservative majority sided with a would-be wedding website designer who wanted to assert her religious-based right to turn away same-sex couples.
Which side the court lands on in this term’s big online constitutional questions is anyone’s guess.
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Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at kimberly.atkinsstohr@globe.com. Follow her @KimberlyEAtkins.
