Publications

Greetings, Court Fans!

We’re back to round up last week’s decisions.

• Lindke v. Freed (No. 22-611) and O’Connor-Ratcliff v. Garnier (No. 22-324), in which the Court (kind of) addressed when a public official’s blocking of a member of the public from the official’s social-media pages violates the First Amendment;
• Wilkinson v. Garland (No. 22-666), in which the Court held that an immigration judge’s determination that the removal of a person from the United States would not cause an “exceptional and extremely unusual hardship” to that person’s family is a mixed question of fact and law reviewable by a court of appeals; and
• FBI v. Firke (No. 22-1178), in which the Court held that a plaintiff’s suit against the federal government over his allegedly improper placement on the No Fly List was not mooted when the Government removed him from the list.

Let’s start with Lindke v. Freed (No. 22-611) and O’Connor-Radcliff v. Garnier (No. 22-324), two of five cases this term involving the application of the First Amendment to social-media platforms. In this pair, the Court was asked whether, and when, public officials may “block” particular followers on their social-media accounts. While the Court confidently answered a different (albeit necessary) question—when is a government official’s speech on social media attributable to the State?—it did not ultimately say much about the more difficult question beyond, essentially, “blocker beware.” The upshot is that government officials should think twice before blocking critics on their social media accounts or, better yet, don’t mix “official” and personal accounts to begin with.

Before we get into the details of these particular cases, you may be asking yourself, “Didn’t this already come up with President Trump?” Good memory! The former president was a prolific user, and blocker, on the former Twitter, and was indeed sued back in 2017 for blocking users based on their critical comments. The Second Circuit ruled that Trump’s actions violated the First Amendment because the “interactive space” on his Twitter account was a public forum and he had blocked individuals based on their viewpoints. But by the time the case made its way to the Supreme Court (and after the Court sat on it for quite a while), Trump had left office, rendering the case moot.

Thus, lower courts in Michigan and California had no SCOTUS-approved test to apply when this issue (inevitably) recurred with respect to some public officials at a slightly lower level of government. James Freed was the city manager of Port Huron, Michigan, while Michell O’Connor-Ratcliff and T.J. Zane were members of the Poway (California) Unified School District Board of  Trustees. Each of them had longstanding personal Facebook accounts, which they converted to “public pages” after assuming public office (and, in Freed’s case, exceeding the maximum of 5,000 “friends” for a personal page). They continued using their accounts primarily for personal purposes—sharing photos and the like—but also posted “official” content. O’Connor-Ratcliff and Zane posted School Board meeting recaps and public safety updates, for example, while Freed started posting frequently about the city’s response to the pandemic. Enter the trolls. In each case, citizens who were unhappy with the policies of these fine public servants began making critical (in some case, borderline harassing) comments on their Facebook posts. The officials initially deleted these comments but ultimately “blocked” their antagonists, which meant that the critics could still see the officials’ posts but could no longer comment on them.

The “blockees” sued, raising similar claims that Freed (in Michigan) and O’Connor-Ratcliff and Zane (in California) had violated their First Amendment rights by blocking them from a “public forum” on the basis of their viewpoints. The lower courts applied different, circuit-specific, tests, reaching different results. In Lindke’s case, the Sixth Circuit held that a public official acts in an official capacity for state-action purposes when he is “performing an actual or apparent duty of his office, or if he could not have behaved as he did without the authority of his office.” Applying this test, the court held that Freed’s Facebook activity was not official because his account did not belong to the City, did not use state resources or government staff, and he was not required to maintain the account in the first place. The Ninth Circuit applied a different test (though similar to the test applied by the Second Circuit in the Trump case), focusing on whether the “appearance and content” of the Trustees’ accounts made them look official, so the state-action requirement was satisfied.

The Supreme Court granted review in both cases, and issued a unanimous opinion in Lindke announcing the following test: “[A] public official’s social-media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” As Justice Barrett explained in her opinion for the Court, a person can only be liable under § 1983 if he or she acted “under color of any statute, ordinance, regulation, custom, or usage, of any State.” While most state-action cases grapple with the question whether a seemingly private party (e.g., a “company town” or a private prison) has nevertheless acted under color of state law, the inverse question—when does a state official function as a private citizen—is at least as important in an era of almost nonstop interaction between the public and public officials. In this respect, Barrett stressed that “[t]he distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.”

Justice Barrett then addressed the two requirements that must guide this “close look.” The first—that the official have actual authority to speak on behalf of the State—is “grounded in the bedrock requirement that the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” If Freed didn’t have any authority to speak for Port Huron on his Facebook page, then it wouldn’t matter, in Barrett’s view, whether he purported to do so or whether his page had the appearance of an official account. Moreover, if he was authorized to speak on the city’s behalf with respect to some matters, but not others, his speech on those unauthorized matters could not be attributable to the city, either. To determine whether an official is authorized to speak on behalf of the state through social media, Barrett pointed to the sources of authority in § 1983, itself: “statute, ordinance, regulation, custom, or usage.” The authority need not come from a formal ordinance or rule, but could also derive from a custom of others in the particular position exercising the authority to speak on the state’s behalf. In short, “a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State.” And that authority must extend to speech of the sort that caused the alleged constitutional deprivation in order to for there to be state action.

Turning to the second requirement, Justice Barrett emphasized that “[f]or social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it.” Here, Justice Barrett acknowledged that making this determination will be extremely difficult and context-dependent. In Freed’s case, Barrett noted that the Facebook page was likely “mixed use”—part official, part personal—meaning that inquiry would have to proceed to the level of each post, not just the overall nature of the account. She justified the difficulty of this inquiry, though, with the reminder that public officials have their own constitutional right to speak in their personal capacities, even about public affairs. The risk of holding them liable for exercising their own First Amendment rights justifies the “close look” that the Court’s test requires.

As if to underscore the difficulty of applying its new test, the Court vacated the judgment in Freed’s favor “[t]o the extent that this test differs from the one applied by the Sixth Circuit.” The decretal language was clearer in the case of O’Connor-Ratcliff and Zane, which the Court decided separately in a per curiam opinion. Because the Ninth Circuit had applied its own “appearance and content” to find state action, the Court vacated that judgment and remanded with instructions to apply the new test.

But how, the lower courts may well ask on remand, are we meant to apply this test about when an official’s social-media posts are official to these cases challenging the officials’ decisions to block others from commenting on their accounts? The Court’s two opinions pay surprisingly little notice to this question. In her opinion in Lindke, Justice Barrett added “[o]ne last point,” noting that “[t]he nature of the technology matters to the state-action analysis.” When addressing whether Freed engaged in state action when he deleted Lindke’s comments, the inquiry is simply whether the posts that attracted Lindke’s comments satisfy the test set out in the opinion. But Facebook’s “blocking tool” operates on a “page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment,” but now could not. Seeming to recognize the practical difficulties with this solution (which are compounded on platforms where “blocked” users cannot even view the blockers’ posts), Justice Barrett effectively said, “that’s what you get.” “A public official who fails to keep personal posts in a clearly designated personal account there[by] exposes himself to greater potential liability.”

Moving along, in Wilkinson v. Garland (No. 22-666), the Court addressed another recurring question—what sorts of decisions and determinations of immigration judges are subject to judicial review by an Article III court. As you know, the immigration “court system” is not part of the Judicial Branch, but the Executive. While the decisions of Immigration Judges are subject to review by the Board of Immigration Appeals, Congress has largely stripped Article III courts of jurisdiction over “judgment[s] regarding the granting of relief” from removal, permitting judicial review only of “constitutional claims or questions of law.” Precisely what sorts of claims and questions fall into this category has been a frequent subject of litigation. Here, the Court considered whether Article III courts can review an immigration judge’s decision whether a noncitizen who is eligible for cancellation of removal has “establish[ed] that removal would result in exceptional and extremely unusual hardship to the [noncitizen’s] spouse, parent, or child” who is a U.S. citizen or permanent resident.

The question arose in the case of Situ Kamu Wilkinson, a noncitizen who fled violence in his native Trinidad and Tobago in 2003 and, after overstaying his initial tourist visa, settled in the United States. Ten years later, he had a son, “M.”, with his girlfriend, Kenyatta Watson. In 2019, however, Wilkinson was placed in removal proceedings. During the proceedings, Wilkinson and his family members testified about how his removal would gravely affect the family, in particular M., who suffered from severe asthma and had begun to exhibit other behavioral and emotional issues after Wilkinson was detained. Watson, Wilkinson’s partner, was unable to work, and the pair relied on Wilknson for financial support even though they lived with Watson’s mother. The IJ found this testimony credible, but concluded that, under BIA precedent, Wilkinson had not shown that M. “would suffer hardship that is substantially different from or beyond that which would ordinarily be expected to result from [Wilkinson’s] removal.” In particular, the IJ concluded that M. could still receive financial assistance from public and private sources other than Wilkinson and had gone without Wilkinson’s daily emotional support on weekdays for most of the five preceding years, when Wilkinson was working out of state and only visiting on weekends. The IJ therefore concluded that the evidence of M.’s financial and emotional hardship did not rise to the level of “exceptional and extremely unusual hardship” and denied Wilkinson’s application for cancellation of removal. The BIA affirmed, and Wilkinson petitioned the Third Circuit for review. But that court concluded that it lacked jurisdiction to review the final removal order because the IJ’s hardship determination was discretionary rather than one raising “questions of law.”

The Supreme Court reversed. Writing for the majority, Justice Sotomayor noted that the Court had previously held, in Guerrero-Lasprilla v. Barr (2020), a case involving the due diligence standard for equitable tolling, that reviewable “questions of law” include “mixed questions of law and fact” which entail the “application of a legal standard to undisputed or established facts.” In contrast, judicial review is unavailable where traditional fact questions—such as an applicant’s credibility—are at issue. The Court held that Wilkinson’s petition for review presented a mixed question of law and fact because he challenged the agency’s determination that the hardships M. would face were not “exceptional and extremely unusual.” Although that analysis “concededly requires a close examination of the facts,” Justice Sotomayor concluded that courts can nevertheless review whether the agency appropriately applied the statutory hardship standard to those facts. She noted, however, that courts cannot review an IJ’s discretionary decision not to grant a cancellation of removal where the hardship standard is met.

In a brief concurrence, Justice Jackson expressed skepticism that Congress intended Article III courts to have jurisdiction over determinations that are primarily factual in nature, such as hardship. But she joined the Court’s opinion insofar as it was predicated on Guerrero-Lasprilla’s interpretation of the statute, which Congress could override through amendment.

Justice Alito dissented, joined by the Chief and Justice Thomas. In his view, the Court was simply compounding its error in Guerrero-Lasprilla by reading the “questions of law” exception so broadly as to swallow the rule that courts lack jurisdiction to review fact-based agency determinations, as opposed to purely legal errors. In Alito’s view, it defies common sense to think that Congress stripped the federal courts of jurisdiction to review discretionary, fact-bound determinations, only to reinstate that same form of review with a catchall “mixed questions” exception.

Chief Justice Roberts issued a separate dissent, briefly noting that while he’d joined the majority in Guerrero-Lasprilla, he agreed with Justice Alito that the Wilkinson Court was wrong to stretch that “mixed questions” exception “to the outer limits of its possible reach.”

And finally, in FBI v. Fikre (No. 22-1178), the Court resolved a circuit split regarding when the government’s removal of a person from the “No Fly List” moots claims against it relating to the person’s original placement on the list.

Yonas Fikre, a U.S. citizen, was placed on the No Fly List in 2009, during a business trip to Sudan. Unable to fly back to the United States, he flew to the United Arab Emirates, where he was detained by local authorities at the behest of the FBI.  Fikre eventually made his way to Sweden, where he remained until 2015. While in Sweden, Fikre filed suit alleging that the government had violated his procedural due process rights by placing him on the No Fly List without providing him meaningful notice or any way to secure redress. He also alleged that he was placed on the list for constitutionally impermissible reasons, including his race, national origin, and religion. He sought a declaratory judgment that the government had violated his rights and an injunction removing him from the list. In response, the Government removed Fikre from the No Fly List and eventually provided a declaration stating that “based on the currently available information,” he would not be placed back on the List in the future. Based on these actions, a California district court dismissed Fikre’s lawsuit as moot, but the Ninth Circuit reversed, holding that the single declaration was insufficient to demonstrate that the government’s allegedly unlawful conduct could not “reasonably be expected to recur.” Shortly after, the Fourth Circuit held that a similar declaration was sufficient to moot a lawsuit challenging an American citizen’s placement on the No Fly List.

The Supreme Court resolved the split in the Ninth Circuit’s favor. Writing for a unanimous Court, Justice Gorsuch first emphasized the principle that a defendant who seeks to moot a suit based on voluntary cessation of the challenged conduct bears a “formidable burden.” Here, because the Government had never provided Fikre with any information about why he was placed on the No Fly List in the first place, it did not give him any reasonable assurance that it wouldn’t relist him again. “Put simply, the government’s sparse declaration f[ell] short of demonstrating that it cannot reasonably be expected to do again in the future what it is alleged to have done in the past.” That said, Gorsuch noted that the Court’s decision was necessarily provisional in nature, and that it could be possible for the Government to moot Fikre’s suit by providing an adequate assurance that the violation will not recur.

In a short concurring opinion, Justice Alito, joined by Justice Kavanaugh, emphasized that the Court’s opinion did not require the government to provide any classified information to Fikre, Fikre’s lawyers, or the District Court. Thus, it would be possible for the Government to moot the case in the future even without providing that sort of sensitive information.