The distinction can be critical because public officials are free to block specific individuals from commenting on or even viewing social media posts that are purely private, but courts have ruled that such actions taken on official posts or accounts run afoul of the First Amendment.
In a 15-page opinion, Justice Amy Coney Barrett offered a fairly narrow definition of official posts, seeking to avoid the complications that could arise if millions of government employees found their social media accounts subject to strict limits that don’t apply to most users.
Barrett, the youngest sitting justice, said courts can step in only where an official has authority to speak for the government in the subjects they are posting about and where the official invokes that authority.
Posts on social media pages or accounts that officials explicitly announce are personal are “entitled to a heavy (though not irrebuttable) presumption that all of the posts” there are personal, wrote Barrett, an appointee of President Donald Trump.
However, Barrett also issued a warning. “An official cannot insulate government business from scrutiny by conducting it on a personal page,” she wrote. When officials use a nominally personal account or page to solicit official comments on a regulation or as the sole means of accessing government information, like a livestream of a city council meeting, those posts would be deemed official, she added.
During oral argument on the issue in October, some justices appeared concerned that defining too much speech as official could be highly disruptive. One concern was that any time a public official met constituents, even at the official’s home, other residents could demand access.
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