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There are several major social media cases facing the U.S. Supreme Court this term, all having to do with the First Amendment. The decisions the court issues will effectively create a new legal regime where none existed before. The first major issue, on the constitutionality of public officials blocking other users, shows how hard this is going to be for justices who have not yet fully understood how the architecture of social media platforms can change society.
The first set of cases, O'Connor-Ratcliff v. Garnier and Lindke v. Freed, involves the question of whether a public official using social media can block a user without violating the user's First Amendment rights. The oral argument found the justices puzzling over a question that arises in every constitutional case: whether the government has actually taken an action that is covered by some provision of the founding document.
The First Amendment only protects individuals against what the government does to them, not against conduct from private citizens. So if a public official's social media account is deemed private by the courts, being blocked by that official cuts no First Amendment ice. If the account is in some way a manifestation of the government, then you might be able to claim that the government blocked you, thereby violating your right to free speech.
You can probably imagine the different possible answers to this question. One approach would ask whether the public official is doing their job when using the social media account. Another would ask whether a reasonable person would think that the account (or maybe the act of blocking) was done by the government. Yet another variant would consider whether the account belonged to the official before they took office and would continue to belong to them afterwards. And so forth. All of these sound plausible.
The solution is always to go back to the fundamental question of why we have the First Amendment in the first place: We want to facilitate free, thoughtful conversations among citizens about how to govern ourselves, without the state trying to determine who can speak. We also care about self-expression as an inherent good.
Now apply those values to social media platforms. They, too, are designed to facilitate collective conversation. But the basic architecture of the platforms is that they let you pick and choose with whom you want to engage. If users are nasty, offensive or just plain annoying, the platform enables you to block them. On top of that, all social media conversations, including those involving government officials, take place in a framework of rules set by the platform, not by the government. If you violate those rules, the platform can remove your posts. If you violate the rules enough, the platform can ban you — even if you're the president of the United States. Thus, there is plenty of speech that is protected by the First Amendment but prohibited on the platforms under their community standards or terms of service.
