The 8 First Amendment cases the Supreme Court will decide this term

Gun Rights

The 2023-2024 Supreme Court term will be remembered as one that redefined the rules by which Americans interact online. It features eight cases that will have far-reaching implications for the ways we interact online, both with elected officials and with one another, and for how the government interacts with online platforms. The Court will also decide a case about the more general issue of governments pressuring private groups for political reasons.

Below are the Supreme Court cases FIRE has been monitoring for how they will affect Americans’ fundamental right to free expression, what you need to know about them, and why they matter.

Can public officials block users on social media accounts they use for official business?

Lindke v. Freed and O’Connor-Ratcliff v. Garnier (Decided March 15, 2024)

What you need to know

This question is the focus of two separate cases. 

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The first involves James Freed, city manager of Port Huron, Michigan. Although Freed mostly posted about his family life on his public Facebook page, he also identified himself there as a “public figure” and posted about city programs, policies, and initiatives.

If public officials can use “personal” social media accounts to shield themselves from criticism despite using those accounts for official state action, it will limit the ability of their constituents to engage with elected officials and hold them accountable.

After one of Freed’s constituents, Kevin Lindke, criticized Freed’s actions during the pandemic, Freed blocked him. Lindke sued, arguing Freed violated his First Amendment rights. The U.S. Court of Appeals for the Sixth Circuit sided with Freed.

The second case involves elected school board members in Poway, California, who created social media pages (using their official titles) that they used to inform the public about their positions. However, when constituents began posting repetitive and off-topic responses to their posts, these school board members blocked them.

The constituents sued, alleging that the school board officials’ actions violated their First Amendment rights. In this case, the Ninth Circuit ruled against the school board officials.

The Supreme Court took up Lindke v. Freed and O’Connor-Ratcliff v. Garnier together, hearing arguments and later issuing opinions in tandem.

In a unanimous opinion by Justice Amy Coney Barrett, the Court ruled that a public official’s social media activity will be considered state action when an official 1) Has actual authority to speak on the state’s behalf, and 2) purports to exercise that authority when speaking on social media. 

Critically, the Court stressed that “[a]n official cannot insulate government business from scrutiny by conducting it on a personal page.” In other words, whenever you conduct state business as a public official, you are subject to First Amendment restrictions on limiting the speech of American citizens — and you can’t use a personal social media profile as an excuse to silence criticism.

The Court observed that “mixed-use” pages, such as Freed’s, could be either official or personal depending on how they’re used at a given time. To determine when posts become official state action, lower courts should conduct a “fact-specific inquiry,” in which a post’s “content and function are the most important considerations.” 

The Court sent both Freed’s and the Poway school board’s cases back to their respective circuit courts to reconsider their decisions based on this new standard.

Why it matters

If Freed’s and the Poway school board members’ social media activity (e.g., deleting comments or blocking users) is considered “official” or state action (as opposed to their own personal expression), then they are subject to the First Amendment’s restrictions on limiting the speech of American citizens.

If public officials can use “personal” social media accounts to shield themselves from criticism despite using those accounts for official state action, it will limit the ability of their constituents to engage with elected officials and hold them accountable.

Can protest organizers be held negligent and liable for acts committed by unidentified people at the protest?

Mckesson v. Doe (Denied petition for certiorari on April 15, 2024)

What you need to know

DeRay Mckesson is an activist and organizer. After the police shooting of Alton Sterling in Baton Rouge, Louisiana, Mckesson organized a Black Lives Matter protest on the highway in front of the police headquarters. 

During the protest, an unidentified person threw an object that struck and injured police officer John Doe. The officer sued Mckesson and Black Lives Matter under various legal theories, alleging that as organizers of the protests they were responsible for his injuries. 

The Fifth Circuit dismissed many of Doe’s claims against Mckesson, but allowed one: negligence. The court ruled that, under Louisiana law, Doe could plausibly argue that Mckesson had “a duty not to negligently precipitate the crime of a third party.”

In other words, any damage caused by anyone during the protest Mckesson organized was potentially his responsibility.

Mckesson appealed the decision, but the Supreme Court declined to hear this case.

In a statement commenting on its decision not to hear the case, Justice Sonia Sotomayor observed that the Supreme Court’s recent opinion in Counterman v. Colorado made clear that “the First Amendment precludes punishment [for incitement], whether civil or criminal, unless the speaker’s words were ‘intended’ (not just likely) to produce imminent disorder.” She suggested the same principle should guide lower courts when the Mckesson case comes back for review.

This echoed the argument FIRE made in our amicus brief urging the Supreme Court to send the case back to the Fifth Circuit to reconsider in light of Counterman. In short, someone cannot be held responsible for the actions of another unless they can be proven to have intended to incite it.

Justice Sotomayor put lower courts on notice, stating she expects them to “give full and fair consideration” to Counterman’s impact in any future proceedings in this particular case.

Why it matters

Despite Justice Sotomayor’s commentary, the Supreme Court’s inaction here is troubling. It leaves in place the Fifth Circuit’s ruling, which could have a massive chilling effect on the right to organize a protest in Louisiana, Mississippi, and Texas.

People who would like to organize protests may now fear doing so because the misdeeds of others — whether they’re identified as part of the protest or not — could subject them to crippling liability.

Do laws that regulate social media content moderation violate the First Amendment?

Moody v. NetChoice and NetChoice v. Paxton (Argued Feb. 26, 2024)

What you need to know

This question is also the subject of two cases, each involving social media regulations: one in Florida, the other in Texas. 

Supreme Court Justices raise First Amendment concerns in NetChoice oral argument

News

The Supreme Court of the United States held oral arguments for two consequential cases surrounding the First Amendment rights of social media platforms: Moody v. NetChoice and NetChoice v. Paxton.


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The Florida law, Senate Bill 7072, was enacted in May 2021 to address allegations that social media companies were moderating content based on its particular political or ideological side. The law prohibits this type of “viewpoint discrimination” and requires social media sites to provide both notice and a “thorough rationale” to users any time their content is removed, hidden, or otherwise restricted from other users’ view.

The district court blocked the law, finding that it likely violates the First Amendment by controlling the editorial and content moderation decisions of a private platform. The Eleventh Circuit agreed, characterizing the restrictions as overbroad and “an instance of burning the house to roast a pig.”

Meanwhile, in September 2021, Texas passed House Bill 20. The law applies to websites with 50 million or more monthly active users and prohibits these websites from moderating content based on the viewpoint it expresses. It also requires websites to provide both notice and an explanation to users any time their content is moderated, as well as the opportunity to appeal the moderation decision.

The district court blocked the law, but the Fifth Circuit disagreed, writing that a website’s moderation decisions are not speech but “censorship” — and that the State may therefore regulate it without violating the First Amendment.

Why it matters

With Moody v. NetChoice and NetChoice v. Paxton, the Supreme Court will decide whether the government can force social media companies to distribute speech against their will. Much hinges on how social media platforms are characterized — as content publishers with editorial authority or as public utilities with no say in what gets communicated through their channels.

The platforms argue the First Amendment protects their decisions about what speech to disseminate or promote — similar to how the First Amendment protects the right of newspapers to decide what appears in their pages.

Meanwhile, Florida and Texas argue that social media platforms are modern public squares — and that their content moderation would be like a phone company monitoring your calls and shutting off your service based on what you were saying. However, this view fails to account for the historically different functions of communications common carriers from social media.

If the Supreme Court fully addresses the merits of the two cases, its decision could have major ramifications — not only for social media platforms but also for other internet forums and websites that moderate their users’ speech. 

Can the government pressure social media platforms to censor users’ posts?

Murthy v. Missouri (Argued March 18, 2024)

What you need to know

After repeated communications with various government agencies, social media companies restricted users’ speech — particularly speech related to COVID-19 policies, mask mandates, and vaccines. The attorneys general of Missouri and Louisiana, along with a number of other individuals, sued the federal government.

The lawsuit claimed that government agencies — including the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, and the Cybersecurity and Infrastructure Security Agency — “coerced, threatened, and pressured social-media platforms to censor” their posts and those of their constituents, in violation of the First Amendment.

The district court sided with them, immediately prohibiting nearly all communication between a large swath of the federal government and social media platforms. The Fifth Circuit largely agreed, but limited the prohibition to the White House, the Surgeon General, the CDC, and the FBI.

What is jawboning? And does it violate the First Amendment?

Issue Pages

Indirect government censorship is still government censorship — and it must be stopped.


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However, the government appealed this prohibition to the Supreme Court, which granted the appeal. Until the Court hears the case, communications between these agencies and social media platforms remain unrestricted.

Why it matters

This case raises important questions about the constitutional limits on what is called “jawboning,” or informal governmental attempts to coerce private platforms into restricting speech the government doesn’t like.

While the First Amendment clearly prohibits government actors from discriminating against speech based on its content and viewpoint — this extends beyond formal laws to “informal” regulation — the law is less clear on how much pressure the government can apply to private entities before its actions are considered unconstitutionally coercive. The case also asks how much cooperation between government and private actors is too much when it affects editorial choices.

In this case, the government argues it was merely combating misinformation and disinformation by flagging content that violated platforms’ existing policies. It maintains that agencies were engaged in a collaborative process with social media platforms, not a coercive one.

Determining exactly where that line is and whether the government crossed it will be up to the Court if it decides to reach the merits of the case. Some questions at oral argument suggest the justices may seek a way to avoid deciding the ultimate questions presented. Either way, its decision may have wide implications for the expression of social media platforms and its users.

Can the government threaten businesses for associating with controversial figures?

National Rifle Association of America v. Vullo (Argued March 18, 2024)

What you need to know

The National Rifle Association alleges that New York Department of Financial Services head Maria Vullo threatened a number of regulated banks and insurance companies in an attempt to pressure them to sever ties with the NRA. 

The NRA sued, alleging that these tactics constitute coercive discrimination based on the content of the NRA’s advocacy — a violation of the First Amendment.

The Second Circuit disagreed, however, and dismissed the case. The court asserted that bank regulators are right to be concerned about unpopular political speech from bank customers. Further, the court ruled New York’s actions amounted to government speech, not an infringement of the NRA’s First Amendment rights.

Why it matters

Similar to Murthy v. Missouri (which was argued on the same day), this case raises the question of when informal government pressure to restrict disfavored speech crosses the line into violating the First Amendment.

While the Second Circuit decided that the State can legitimately counter speech it opposes as long as it doesn’t make explicit threats, most other circuits have ruled that those actions must not chill private expression.

The Supreme Court’s decision will determine where that line is drawn and will affect how much leeway government actors have in using their power to influence the actions of other entities.

Can the government refuse to register a trademark because it criticizes a public figure?

Vidal v. Elster (Argued Nov. 1, 2023)

What you need to know

Steve Elster created a line of T-shirts featuring the phrase “TRUMP TOO SMALL,” and wanted to register the phrase as a trademark, but the U.S. Patent and Trademark Office rejected his application. 

The office cited a section of a law called the Lanham Act, which prohibits registering a trademark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.”

Elster sued on First Amendment grounds. 

The Trademark Trial and Appeal Board defended the rejection, arguing that Elster’s phrase “comprises the name of President Donald Trump without his written consent.” It considered the section of the Lanham Act to be a viewpoint-neutral set of criteria for trademark registration, and therefore not a direct restriction on speech. 

The U.S. Court of Appeals for the Federal Circuit disagreed, however, writing that while the section of the law is viewpoint-neutral, it is still a content-based restriction on speech that violates the First Amendment.

Why it matters

While this case has attracted attention for the parodic slogan “TRUMP TOO SMALL,” its resolution will have significant consequences for First Amendment law — particularly as it is balanced against intellectual property rights.

If creating novelty T-shirts about public figures — including presidential candidates — requires their written consent, how many shirts that are somehow critical of those figures would you expect to see? What other implications would such a law have on the ability of American citizens to create parodic or political art and products?

Can the police selectively arrest someone under a rarely enforced law?

Gonzales v. Trevino (Argued March 20, 2024)

What you need to know

Sylvia Gonzales is a former city councilwoman in Castle Hills, Texas, and an outspoken critic of the current city manager. 

In 2019, while Gonzales was still a councilwoman, city officials arrested her for misplacing a petition she helped organize calling for the removal of the city manager. They justified the arrest by citing a rarely enforced state law typically used to punish fake IDs.

Gonzales sued on the grounds that the police had never enforced this law before and alleged that they did so in this case because she criticized the city manager — speech protected by the First Amendment. The district court sided with Gonzales.

This has wide implications for one of the most important freedoms the First Amendment provides its citizens: the right to criticize the government. 

The State appealed, bringing the case to the U.S. Court of Appeals for the Fifth Circuit. Normally, in order to prove that police retaliated against her for her speech, Gonzales would have to show that others engaged in the same conduct prohibited by the law without being arrested. 

In this case, however, the Fifth Circuit employed a rigid and narrow reading of the exception, requiring Gonzales to provide examples of others doing the same exact thing she did without being arrested. She couldn’t do that, so the Fifth Circuit ruled against Gonzales. She argued unsuccessfully that it should be enough to show that officials dredged up some never-enforced law to silence her even if she could not provide examples of non-enforcement against others who faced the same exact situation.

Why it matters

The Fifth Circuit’s narrow view of the exception gives police officers license to abuse their authority. Sprawling criminal codes, like the one used against Gonzales, provide officers with the ability to arrest government critics with little recourse for victims. 

This has wide implications for one of the most important freedoms the First Amendment provides its citizens: the right to criticize the government. The Supreme Court’s decision on this case could put that important right in jeopardy, and allow government officials the ability to silence criticism by digging up old and unenforced laws when it suits their purposes.

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