The recent test announced by the U.S. Supreme Court regarding public officials censoring critics on social media sets a new precedent for First Amendment protections in the digital age.
According to the test, a public official violates the First Amendment only if they both possessed the actual authority to speak on behalf of the state on a particular matter and purported to exercise that authority in their social media posts.
This test introduces a nuanced approach to assessing First Amendment violations in the context of social media censorship. It acknowledges that public officials may have legitimate authority to speak on behalf of the state, but the exercise of that authority must be demonstrated in the specific social media posts in question.
Social Media Cases (Credits: California School Boards Association)
Clare R. Norins, a Clinical Assistant Professor and First Amendment Clinic Director, highlights that much of the ensuing litigation will focus on determining whether the first part of the test is met.
Establishing an official’s authority to speak on behalf of the state may not always have a straightforward answer, as it can be based on statutes, ordinances, regulations, customs, or usage.
Social Media Cases (Credit: monsieur de villefort)
Including “custom or usage” as a basis for establishing an official’s authority adds complexity to the interpretation and application of the test.
Trial courts will likely grapple with determining how customs or usage are defined and applied in the context of social media censorship cases.
As this test sets a new standard for evaluating First Amendment violations in the digital realm, its interpretation and application will be crucial in shaping future litigation and clarifying the boundaries of free speech rights in the age of social media.
The test underscores the evolving nature of First Amendment jurisprudence in response to technological advancements and the changing landscape of public discourse.
