Amicus Curiae Brief — Kevin Lindke, Petitioner v. James R. Freed

Nos. 22-324, 22-611

IN THE

Supreme Court of the United States

MICHELLE O’CONNOR-RATCLIFF, ET AL.,

Petitioners,

v.

CHRISTOPHER GARNIER, ET UX.,

Respondents.

KEVIN LINDKE,

v.

Petitioner,

JAMES R. FREED,

Respondent.

On Writs of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit and the

U.S. Court of Appeals for the Sixth Circuit

BRIEF OF THE NRSC AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS IN NO. 22-324 AND

RESPONDENTS IN NO. 22-611

Ryan G. Dollar

General Counsel

Blake D. Murphy

Deputy General Counsel

NRSC

425 Second Street, NE

Washington, DC 20002

Michael E. Toner

Brandis L. Zehr

Jeremy J. Broggi*

Boyd Garriott

WILEY REIN LLP

2050 M St NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

*Counsel of Record

June 30, 2023

Counsel for Amicus Curiae

-iTABLE OF CONTENTS

Page

TABLE OF CITED AUTHORITIES.......................... ii

INTEREST OF AMICUS CURIAE ............................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................4

I.

The First Amendment Safeguards The Right Of

All Candidates To Freely Advocate Their

Election. .............................................................4

II.

Nearly All Candidates Use Social Media To

Advocate Their Election. ...................................8

III.

A.

Social Media Is An Essential Campaign

Tool. .........................................................8

B.

Incumbents Discuss Their Jobs On Social

Media To Persuade Voters To Reelect

Them. ....................................................11

C.

At The Federal Level, Incumbents

Typically Maintain Separate Social

Media Accounts. ....................................13

D.

Candidates Moderate Social Media

Communications

To

Shape

Their

Electoral Message. ................................15

The Test For State Action On Social Media

Platforms Must Be Clear To Avoid Chilling

Candidate Expression. ....................................17

CONCLUSION ..........................................................21

- ii TABLE OF CITED AUTHORITIES

Page(s)

Cases

303 Creative LLC v. Elenis,

600 U.S. __ (2023) ..............................................5, 6

Americans for Prosperity Foundation v.

Bonta,

141 S. Ct. 2373 (2021)..........................................15

Arizona Free Enterprise Club’s

Freedom Club PAC v. Bennett,

564 U.S. 721 (2011) .................................... 5, 11, 20

Ashcroft v. ACLU,

542 U.S. 656 (2004) ..............................................17

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) ................................................6

Buckley v. Valeo,

424 U.S. 1 (1976)...................... 1, 4, 5, 9, 11, 19, 20

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021).................... 11, 12, 19

Citizens United v. FEC,

558 U.S. 310 (2010) ..............................................17

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019)................................13

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ..............................................19

- iii TABLE OF CITED AUTHORITIES

Page(s)

FEC v. Cruz,

142 S. Ct. 1638 (2022).............................. 1, 5, 8, 19

Hurley v. Irish-American Gay, Lesbian

& Bisexual Group of Boston,

515 U.S. 557 (1995) ......................................5, 6, 17

Johnson v. Commission on Presidential

Debates,

869 F.3d 976 (D.C. Cir. 2017) ................................7

Knight First Amendment Institute at

Columbia University v. Trump,

928 F.3d 226 (2d Cir. 2019) .................................13

Manhattan Community Access Corp. v.

Halleck,

139 S. Ct. 1921 (2019)..........................................17

McIntyre v. Ohio Elections

Commission,

514 U.S. 334 (1995) ................................................5

Packingham v. North Carolina,

582 U.S. 98 (2017) ..................................................8

Perot v. FEC,

97 F.3d 553 (D.C. Cir. 1996) ..................................7

Riley v. National Federation of the

Blind of North Carolina, Inc.,

487 U.S. 781 (1988) ..........................................6, 19

- iv TABLE OF CITED AUTHORITIES

Page(s)

Sistrunk v. City of Strongsville,

99 F.3d 194 (6th Cir. 1996)................................6, 7

Snyder v. Phelps,

562 U.S. 443 (2011) ..........................................5, 19

Twitter, Inc. v. Taamneh,

143 S. Ct. 1206 (2023)............................................9

Virginia v. Hicks,

539 U.S. 113 (2003) ........................................17, 20

Whitney v. California,

274 U.S. 357 (1927) ................................................5

Statutes

2 U.S.C. § 503(d)........................................................13

31 U.S.C. § 1301 ........................................................13

31 U.S.C. § 1341 ........................................................13

31 U.S.C. § 1342 ........................................................13

Other Authorities

Michael Barone, Our Country: The

Shaping of America from Roosevelt

to Reagan (1990) ....................................................9

Allen Guelzo, Lincoln and Douglas: The

Debates that Defined America

(2008) ......................................................................8

-vTABLE OF CITED AUTHORITIES

Page(s)

Katie Harbath and Collier Fernekes, A

Brief History of Tech and Elections:

A 26-Year Journey (Sept. 28, 2022) ......................9

Pew Research Center, Charting Con-

gress on Social Media in the 2016

and 2020 Elections (Sept. 30, 2021) ....................10

U.S. Senate, Comm. On Rules and

Admin., Senate Manual, S. Doc. 1171 (2022) (Standing Order of the

Senate 71, Television and Radio

Broadcast of Senate Proceedings) .......................14

U.S. Senate, Comm. on Rules and

Admin., Standing Rules of the

Senate, S. Doc. No. 113-18 (2013) .......................13

U.S. Senate, Internet Services and

Technology Resources Usage Rules

(Nov. 9, 2015) .......................................................14

Emily A. Vogels, Pew Research Center,

The State of Online Harassment

(Jan. 13, 2021)......................................................15

1

INTEREST OF AMICUS CURIAE1

The NRSC (the National Republican Senatorial

Committee) is the principal national political party

committee focused on electing Republican candidates

to the United States Senate. Its membership includes

all incumbent Republican Members of the United

States Senate.

The NRSC has a strong interest in these cases because its members use social media platforms to communicate with voters and advocate their own election

to public office. “The First Amendment ‘has its fullest

and most urgent application precisely to the conduct

of campaigns for political office,’” FEC v. Cruz, 142 S.

Ct. 1638, 1650 (2022) (quoting Monitor Patriot Co. v.

Roy, 401 U.S. 265, 272 (1971)), and this robust constitutional protection for political speech means every

candidate “has a First Amendment right to engage in

the discussion of public issues and vigorously and

tirelessly to advocate his own election,” Buckley v.

Valeo, 424 U.S. 1, 52 (1976).

In contemporary political campaigns, social media

platforms are one of the single most important places

for candidates to exercise their core First Amendment

rights. As in traditional venues, effective electoral advocacy on social media sometimes requires candidates

to exclude messages they do not like. Just as candidates sometimes remove from their campaign rallies

No counsel for a party authored this brief in whole or in part,

and no person or entity other than the NRSC or its counsel made

a monetary contribution intended to fund the preparation or submission of this brief.

1

2

persons that are disruptive or displaying support for

an opponent, candidates sometimes block from their

social media communications users that are posting

offensive, obnoxious, or discordant messages. In the

judgment of these candidates, retaining such messages would fundamentally alter the content of their

own message.

In deciding whether social media activity by a public official constitutes state action, this Court must respect and preserve the First Amendment rights of

elected officeholders. Incumbent candidates must be

permitted to shape their electoral advocacy on social

media without fear that a costly court battle under a

vague and unpredictable standard could hinder their

campaign. So long as an officeholder’s social media

account is not operated pursuant to any governmental

authority or duty, activity on the account is not state

action.

SUMMARY OF ARGUMENT

The First Amendment safeguards the ability of a

candidate to freely advocate his or her election to public office. Political speech occupies the highest rung

in the hierarchy of First Amendment values, and protection for this essential freedom is foundational to

our representative government.

Included within the freedom of speech is a principle of autonomy over one’s own political message. Applied to a candidate for public office, this principle

necessarily entails the right to exclude from electoral

expression messages the candidate does not like.

3

That is why courts have permitted candidates to remove from their campaign events persons who are

disruptive or who display support for other candidates or causes. And it is why courts have upheld decisions excluding from debates minor-party candidates the major-party candidates have chosen to reject. In such cases, courts recognize that compelling

a candidate to include discordant or undesired expression in his own electoral and political communications

would violate the First Amendment. And it has not

mattered whether the candidate is an incumbent who

could be said in some way to exercise the power of the

state.

The same principles apply online. No less than in

other places, candidates use social media to shape a

political message. For an incumbent, an important

part of a social media messaging strategy is often to

remind voters about his or her job performance. At

the federal level, officeholders typically maintain separate, non-government resourced social media accounts (in addition to any account that may be operated using government resources) and use these accounts for political purposes. When another user

posts content on these accounts that is offensive, disruptive, or inconsistent with a candidate’s political

message, the candidate may delete that content or

block the offending user from further participation.

While this does not prevent the user from reposting

the same content elsewhere, it does remove the content from the candidate’s own page.

In determining whether social media activity by a

public official constitutes state action, this Court

must protect the First Amendment rights of elected

4

officeholders and should specifically recognize that incumbents often discuss their job performance for political reasons. Just as an incumbent candidate may

hold a campaign rally that promotes his official accomplishments without transforming that event into

state action, an incumbent candidate may also discuss his official acts on a non-government resourced

social media page without that page becoming state

action, either. And because these pages are not state

action, the candidate can remove from his social media communications messages he or she does not like.

At a minimum, this Court should establish a clear

test that ensures ambiguity does not chill protected

speech. In some circuits, the test for state action is so

amorphous and unpredictable that NRSC members

and other candidates may refrain from exercising

their First Amendment rights rather than risk expensive and potentially distracting litigation that could

disrupt their campaign. This harms not only candidates, but society, which is deprived of a free and uninhibited debate on the issues and candidates that

will shape our national future.

ARGUMENT

I. The First Amendment Safeguards The Right Of

All Candidates To Freely Advocate Their Election.

The First Amendment safeguards the right of

every candidate “to engage in the discussion of public

issues and vigorously and tirelessly to advocate his

own election.” Buckley, 424 U.S. at 52. In our representative system of government established by the

Constitution, it is critical “that candidates have the

5

unfettered opportunity to make their views known so

that the electorate may intelligently evaluate” the

candidates. Id. at 52–53.

This is a chief end of the First Amendment. The

Framers believed “public discussion is a political

duty,” Whitney v. California, 274 U.S. 357, 375 (1927)

(Brandeis, J., concurring), and so enshrined in the

First Amendment a “profound national commitment

to the principle that debate on public issues should be

uninhibited, robust, and wide-open,” Ariz. Free Enter.

Club’s Freedom Club PAC v. Bennett, 564 U.S. 721,

755 (2011) (internal quotation marks and citation

omitted). Among scholars, “there is practically universal agreement that a major purpose of th[e]

Amendment was to protect the free discussion of governmental affairs, of course including discussions of

candidates.” McIntyre v. Ohio Elections Comm’n, 514

U.S. 334, 346 (1995) (cleaned up); see Snyder v.

Phelps, 562 U.S. 443, 452 (2011) (“speech on public

issues occupies the highest rung of the hierarchy of

First Amendment values” (quoting Connick v. Myers,

461 U.S. 138, 145 (1983))). Accordingly, this Court

has often held that “[t]he First Amendment ‘has its

fullest and most urgent application precisely to the

conduct of campaigns for political office.’” Cruz, 142

S. Ct. at 1650 (quoting Monitor Patriot Co. v. Roy, 401

U.S. 265, 272 (1971)).

For candidates, as for other citizens, the First

Amendment embodies “the fundamental rule . . . that

a speaker has the autonomy to choose the content of

his own message.” Hurley v. Irish-Am. Gay, Lesbian

& Bisexual Grp. of Bos., 515 U.S. 557, 573 (1995). The

same is true online. 303 Creative LLC v. Elenis, 600

6

U.S. __, __ (2023) (No. 21-476, slip op., at 10). Since

all speech involves choices about “what to say and

what not to say,” Riley v. Nat’l Fed’n of the Blind of

N.C., Inc., 487 U.S. 781, 797 (1988), all speakers have

a First Amendment right “not to propound a particular point of view,” Boy Scouts of Am. v. Dale, 530 U.S.

640, 654 (2000).

This freedom permits a speaker to exclude from

his or her own expression a political message he or

she does not wish to convey. In Hurley, the Court affirmed a decision by a private entity to remove from

its public parade a group of marchers with “a message

it did not like.” 515 U.S. at 574. That choice, the

Court held, was firmly within the right of the entity

“to shape its expression by speaking on one subject

while remaining silent on another.” Ibid. And it was

“beyond the government’s power to control.” Id. at

575; see also 303 Creative, 600 U.S. at __ (slip op., at

8) (“[speakers] ha[ve] a First Amendment right to present their message undiluted by views they d[o] not

share”); Boy Scouts, 530 U.S. at 656 (“The Boy Scouts

has a First Amendment right to choose to send one

message but not the other.”).

The same principal applies in the electoral context. In Sistrunk v. City of Strongsville, 99 F.3d 194

(6th Cir. 1996), the Sixth Circuit held then-President

George H.W. Bush could exclude from his “pro-Bush

rally” non-disruptive protesters displaying “buttons

and signs for Bill Clinton.” Id. at 199. Applying Hurley, the court reasoned that compelling President

Bush to admit persons expressing a message favoring

Clinton would violate “the fundamental rule of protection under the First Amendment, that a speaker has

7

the autonomy to choose the content of his own message.” Id. at 200 (citation omitted).2

Similar reasoning appears to be at work in decisions involving formal organized debates between political candidates. Pursuant to objective criteria established in agreements with the major-party candidates, debate organizers often exclude minor-party

candidates from their debates. The D.C. Circuit has

denied these minor-party candidates injunctive relief,

explaining that “if th[e] court were to enjoin the [organizers] from staging the debates or from choosing

debate participants, there would be a substantial argument that the court would itself violate the [organizers’] First Amendment rights.” Perot v. FEC, 97

F.3d 553, 559 (D.C. Cir. 1996) (per curiam) (citing

Hurley); see also Johnson v. Comm’n on Presidential

Debates, 869 F.3d 976, 981 (D.C. Cir. 2017) (citing

Perot). That is because participation of minor-party

candidates would undermine the message that they

are not competitive options.

In sum, the freedom of speech safeguards a candidate’s ability to advocate “without legislative limit on

Though seldom litigated, candidates frequently remove from

their events persons who express a contrary message. See, e.g.,

Dan Merica, Man wearing Trump T-shirt protests at Sanders

rally, CNN (Jan. 2, 2016), https://tinyurl.com/3u9fxd46 (reporting that man wearing Trump T-shirt was “escorted out by [Senator] Sanders’ staff”); Kerry Picket, AOC townhall descends into

shouting match among constituents, Washington Times (May

27, 2023), https://tinyurl.com/5n96j6sw (reporting man displaying Cuban and American flags was “escorted out of the room”

after shouting at “town hall hosted by Rep. Alexandria OcasioCortez”).

2

8

behalf of his own candidacy,” Cruz, 142 S. Ct. at 1650

(quoting Buckley, 424 U.S. at 54), and to control his

own political message. As in traditional venues, effective electoral advocacy on social media sometimes

requires candidates to exclude messages they do not

like or that they find offensive or disruptive. The

same principles must apply online in order to protect

candidates’ right to exercise “appropriate editorial

discretion” over their message. CA9 Pet. Br. 30–33

(citations and quotations omitted).

II. Nearly All Candidates Use Social Media To

Advocate Their Election.

A. Social Media Is An Essential Campaign Tool.

Social media is an important place for candidates

to exercise their First Amendment rights. “While in

the past there may have been difficulty in identifying

the most important places . . . for the exchange of

views, today the answer is clear.” Packingham v.

North Carolina, 582 U.S. 98, 104 (2017). In a contemporary political campaign, the place to be heard “is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Ibid.

(quoting Reno v. ACLU, 521 U.S. 844, 868 (1997)).

That campaigns have embraced social media is not

surprising. When Abraham Lincoln debated Stephen

Douglas in hopes of becoming the junior senator from

Illinois, he successfully leveraged the new technologies of his day—the telegraph and the railroad—to

send his message across the Nation with then-stunning speed. See generally Allen Guelzo, Lincoln and

Douglas: The Debates that Defined America (2008).

9

Although Lincoln lost his senatorial race, the popularity he gained later catapulted him to the presidency.

In the twentieth century, “television, radio, and

other mass media” replaced the telegraph and the

railroad as the “indispensable instruments of effective

political speech.” See Buckley, 424 U.S. at 19. Candidates who mastered these mediums were often rewarded with victory. See Michael Barone, Our Coun-

try: The Shaping of America from Roosevelt to Reagan

(1990). Those who did not faced defeat. E.g., Andrew

Martin, How Sweat Cost Richard Nixon the 1960

Election, Medium (Nov. 7, 2020), https://tinyurl.com/yz3nsyhn.

The end of the millennium heralded the beginning

of advocacy online. In 1996, Bob Dole and Bill Clinton

launched the first federal campaign websites. See

Katie Harbath and Collier Fernekes, A Brief History

of Tech and Elections: A 26-Year Journey 1 (Sept. 28,

2022), https://tinyurl.com/5dfcxbm7. The Internet

has played an important role in every election cycle

since.

Today, social media platforms are often the most

important online venues for political campaigns. Like

other social media users, candidates “upload messages, videos, and other types of content, which others

on the platform can then view, respond to, and share.”

Twitter, Inc. v. Taamneh, 143 S. Ct. 1206, 1216

(2023). Using these tools, candidates hope to disseminate their political message and drive voter engagement.

10

In 2020, elections for the U.S. Senate and U.S.

House featured dramatic increases from 2016 in both

the number of lawmakers’ online posts and the frequency of audience engagement. Pew Research Center, Charting Congress on Social Media in the 2016

and 2020 Elections 4 (Sept. 30, 2021), https://tinyurl.com/mvc3snff. Members of both major political

parties shared tens of thousands more posts and received orders of magnitude more engagement from

other social media users compared with the previous

election cycle. Ibid.

This trend will only continue. Some candidates

have announced their campaigns primarily or exclusively through social media. See Ryan Saavedra, De-

Santis Event ‘By Far The Biggest Ever’ Held On Twitter Spaces, $1+ Million Raised In First Hour, The

Daily

Wire

(May

24,

2023),

https://tinyurl.com/yhun27tk. Others are using digital tools

to augment more traditional approaches. See Catherine Garcia, 2024 Senate races to watch, The Week

(May 9, 2023), https://tinyurl.com/24nnzrtr.

Changes in the way Americans consume audio and

visual content are also driving campaigns to emphasize social media. Some campaigns are using social

media to distribute professionally produced promotional videos that, decades ago, would more likely

have been seen on linear television. See Phil Vangelakos, The digital video revolution is just beginning

for modern political campaigns, The Hill (Mar. 26,

2023), https://tinyurl.com/ya9uauwh. Others are embracing formats for self-produced content to connect

with voters in innovative ways. See Marianne Levine,

11

Ted Cruz’s new gig: Top podcaster, Politico (Jan. 27,

2020), https://tinyurl.com/4zcnwfm8.

These are just a few examples that illustrate how

candidates are using social media for electoral advocacy. In a contemporary political campaign, social

media platforms are perhaps the single most important place for a candidate to exercise his or her

First Amendment right to connect with voters, supporters, and the public.

B. Incumbents Discuss Their Jobs On Social Media To Persuade Voters To Reelect Them.

For candidates, communicating on social media is

not an end in itself. At bottom, candidates seek to

persuade their fellow citizens that they are suitable

to hold public office and that they merit electoral support. Buckley, 424 U.S. at 14–15; see Bennett, 564

U.S. at 736–40.

For officeholders, a persuasive electoral message

will often invoke the conduct of their official duties.

After all, most “elections are fundamentally a referendum on the incumbent,” Guy Molyneux, The Big

Five-Oh, The American Prospect (Oct. 1, 2004),

https://prospect.org/article/big-five-oh/, so voters’ perceptions about how they have handled their current

governmental responsibilities are likely to inform

their choice on election day. Incumbents know this

instinctively, and they want to provide voters with information to improve their prospects of victory.

The Eighth Circuit saw this clearly in Campbell v.

Reisch, 986 F.3d 822 (8th Cir. 2021). There, an individual claimed a state legislator violated his First

12

Amendment rights when she blocked him on Twitter

for criticizing “the conduct of her office.” Id. at 825

(citation omitted). Although the court agreed that the

legislator had used her account to discuss her official

responsibilities, it recognized the legislator’s principal goal was “to promote herself and position herself

for more electoral success down the road” by communicating to voters that “she’s the right person for

the job.” Id. at 826. Citing Hurley, the Eighth Circuit

recognized this goal was part of the candidate’s “own

First Amendment right to craft her campaign materials” by excluding “a message on her Twitter page that

she d[id] not wish to convey.” Id. at 827.

The Ninth Circuit missed this. Although that

court acknowledged that “elected officials across the

country increasingly rely on social media . . . to promote their campaigns,” CA9 Pet. App. 5a, it devalued

these First Amendment activities by holding unlawful

two elected school board members’ blocking of critical

comments on Facebook and Twitter, id. at 50a. According to the Ninth Circuit, analysis of the accounts’

contents revealed them to be “state action” because,

in its view, the school board members communicated

about their conduct more as “government officials”

than “campaigner[s] for political office.” Id. at 32a (citation omitted); see id. at 22a–27a.

The Second Circuit and Fourth Circuit have similarly erred. Like the Ninth Circuit, these courts have

wrongly discounted the political and electoral interests that drive a candidate to talk about his government job. As a result, these courts have viewed references to “official titles” and “official duties” as indicia

of state action, Knight First Amend. Inst. at Columbia

13

Univ. v. Trump, 928 F.3d 226, 231 (2d Cir. 2019), cert.

granted, judgment vacated sub nom. Biden v. Knight

First Amend. Inst. At Columbia Univ., 141 S. Ct. 1220

(2021); see Davison v. Randall, 912 F.3d 666, 680 (4th

Cir. 2019), without giving appropriate weight to an

incumbent candidate’s need to communicate about his

official acts to persuade voters that his conduct in office merits future electoral support.

For incumbents, performance in office is a critical

campaign issue. Therefore, an elected official’s discussion of official actions on social media frequently

reflects campaign advocacy.

C. At The Federal Level, Incumbents Typically

Maintain Separate Social Media Accounts.

In addition to electoral advocacy, officeholders

may use social media to perform official acts. For example, a legislator might use a social media platform

to facilitate constituent service.

Federal law requires separation. Federal government resources may not be used for private purposes.

31 U.S.C. § 1301. Likewise, the Antideficiency Act

prohibits private defrayment of government expenses. Id. §§ 1341–1342.

In Congress, the Legislative Branch Appropriations Act prohibits members from using unofficial office accounts to defray official expenses. 2 U.S.C.

§ 503(d); see U.S. Senate, Comm. on Rules and Admin., Standing Rules of the Senate, S. Doc. No. 11318, at 61 (2013), available at https://tinyurl.com/j39t7nt4. Accordingly, if, for example, a

U.S. Senator decides to serve constituents through a

14

social media platform, the Senator must establish an

“official” social media account and use only government resources (e.g., staff, information, photos) to operate that account.

Conversely, the Senator may not impermissibly

use government resources to operate a non-government social media account—such as a “campaign” or

“personal” account. This means non-government social media accounts cannot be operated by Senate

staff on Senate time, among other things. See U.S.

Senate, Internet Services and Technology Resources

Usage Rules (Nov. 9, 2015), https://www.senate.gov/usage/internetpolicy.htm;

U.S.

Senate,

Comm. On Rules and Admin., Senate Manual, S. Doc.

117–1, at 106–109 (2022) (Standing Order of the Senate 71, Television and Radio Broadcast of Senate Proceedings), available at https://tinyurl.com/2p86mvyu.

Critically, these rules restrict the use of government resources but do not purport to otherwise restrict the content of a candidate’s communications on

a non-governmental social media account. Therefore,

while a Senator may not expend official resources on

a non-governmental account, he or she may use the

non-governmental account to discuss the conduct of

his or her office without violating Senate rules.

The result, at the federal level, is a system where

elected officials maintain separate government and

non-government accounts that, while operated independently, may discuss many of the same topics.

15

D. Candidates Moderate Social Media Communications To Shape Their Electoral Message.

Interactions in cyberspace are not all wholesome

or conducive to political expression or advocacy.

“[O]nline venues often serve as platforms for highly

contentious or even extremely offensive political debate,” Emily A. Vogels, Pew Research Center, The

State of Online Harassment 5 (Jan. 13, 2021),

https://tinyurl.com/bddrzxeh. According to a recent

survey, “75% of targets of online abuse—equaling 31%

of Americans overall—say their most recent experience was on social media.” Ibid.

In some cases, bad behavior may involve “threats,

harassing calls, intimidating and obscene emails, and

even pornographic letters” transmitted online. Ams.

for Prosperity Found. v. Bonta, 141 S. Ct. 2373, 2381

(2021); see ibid. (“a technology contractor working at

[an advocacy organization’s] headquarters had posted

online that he was ‘inside the belly of the beast’ and

‘could easily walk into [the CEO’s] office and slit his

throat’”). More commonly, users post information

that is obnoxious, distracting, or contrary to the intended message of the person hosting the page.

The record from the Ninth Circuit is illustrative.

There, an individual posted repetitive comments to

the social media accounts of elected school board trustee Michell O’Connor-Ratcliff. “On one occasion,

within approximately ten minutes, Christopher Garnier posted 226 identical replies to O’Connor-Ratcliff’s

Twitter page, one to each Tweet [she] had ever written on her public account.” CA9 Pet. App. 12a. Another time, he “posted nearly identical comments on

16

42 separate posts O’Connor-Ratcliff made to her Facebook page.” Ibid.

The “comments did not use profanity or threaten

physical harm.” Ibid. Instead, they criticized “race

relations in the [school district], and alleged financial

wrongdoing by” a particular official. Id. at 11a. Frustrated with these themes and the repetitive nature of

the comments, the trustee deleted the negative comments and eventually blocked the user. Id. at 12a.3

While details vary, similar events are playing out

online across the country. In many cases, officials respond as they did below—that is, they delete or hide

posts they do not like, and may block the user from

making further posts on the official’s account. Although these actions do not prevent the user from

making similar comments on his or her own social media account(s), they prevent such comments from appearing on the candidate’s account.

For an incumbent candidate, the ability to control

the content on his non-government resourced social

media account is critical to shaping his electoral message. In the judgment of many candidates, retaining

messages they do not like would fundamentally alter

the content of their own message. Just as in a traditional political or campaign venue the candidate

might remove a person displaying a contrary message, they often do the same online by “blocking” or

“deleting” a user or his posts. In so doing, a candidate

The Sixth Circuit case is similar. There, a city official blocked

on Facebook a “disconcerted citizen” who replied to his posts

about Covid-19. CA6 Pet. App. 3a.

3

17

exercises his First Amendment right “to exclude a

message [he] d[oes] not like from the communication

[he] cho[oses] to make.” Hurley, 515 U.S. at 574.

III. The Test For State Action On Social Media

Platforms Must Be Clear To Avoid Chilling

Candidate Expression.

In addition to abridgments, the First Amendment

restricts laws that “chill” protected speech. See, e.g.,

Ashcroft v. ACLU, 542 U.S. 656, 670–71 (2004). In

this way, the First Amendment both vindicates the silenced and shields the self-censoring who cannot “undertake the considerable burden (and sometimes risk)

of vindicating their rights through case-by-case litigation.” Virginia v. Hicks, 539 U.S. 113, 119 (2003); see

also Citizens United v. FEC, 558 U.S. 310, 326 (2010).

The potential chilling effect should shape the result here. In Manhattan Community Access Corp. v.

Halleck, 139 S. Ct. 1921 (2019), the Court explained

that “the state-action doctrine enforces a critical

boundary between the government and the individual, and thereby protects a robust sphere of individual

liberty.” Id. at 1934. In “the speech context” in particular, this boundary requires clear lines so that “private entities’ right to exercise editorial control over

speech” is not chilled. Id. at 1932.

The Sixth Circuit’s test offers this clarity. In that

circuit, an officeholder’s social media activity is state

action if it “derives from the duties of his office” or

“depends on his state authority.” CA6 Pet. App. 8a.

But in the Ninth Circuit, assessing state action is “a

process of sifting facts and weighing circumstances”

18

that is indeterminate and provides officeholders with

very little practical guidance. CA9 Pet. App. 19a (quotation marks omitted).

To illustrate, imagine Senator Smith is up for

reelection. The centerpiece of his campaign is his enacted legislation authorizing a federal loan for a Boy

Rangers camp. See Mr. Smith Goes to Washington

(Columbia Pictures 1939). Senator Smith frequently

“tweets” about the loan to remind voters that it was

his 25-hour filibuster that defeated an opposition plan

to build a dam and flood the camp. When detractors

reply with arguments about a shortage of drinking

water in his western state, Senator Smith “hides” or

“deletes” the posts, leaving only positive comments

from his supporters.

Under the Sixth Circuit’s test, the analysis would

be straightforward. If Senator Smith used a non-governmental Twitter account and did not impermissibly

employ government resources or staff in its operation,

then the account would not derive from his official duties or depend on his official authority and would not

be state action. See CA6 Pet. App. 8a. Senator Smith

could thus exercise control over the content on his

page without threat of protracted litigation.

Under the Ninth Circuit’s amorphous test the result would be uncertain. Even if Senator Smith used

a non-governmental Twitter account and did not employ government resources or staff in its operation, a

court might determine that his identification of himself as a U.S. Senator, his discussion of the federal

loan, or his posts about the filibuster were, under the

facts and circumstance, state action. See CA9 Pet.

19

App. 22a–26a (citing as indicia of state action, inter

alia, content about “official titles,” “budget planning,”

“policy decisions,” and “events which arose out of . . .

official status”). Or it might not. See Campbell, 986

F.3d at 825–26 (applying a similar test but concluding

the activity was campaign-related, not state action).

Confronted with a potential litigation risk that could

hinder his campaign, Senator Smith might cede control of his message to avoid “the costs of litigation and

the risk of a mistaken adverse finding by the factfinder.” Riley, 487 U.S. at 794.

That result would be contrary to First Amendment

principles. Political speech “occupies the highest rung

in the hierarchy of First Amendment values,” Snyder,

562 U.S. at 452 (citation omitted), and, in our system

of government, “it is of particular importance that

candidates have the unfettered opportunity to make

their views known,” Buckley, 424 U.S. at 52–53; see

Cruz, 142 S. Ct. at 1650. Just as free and open debate

on public issues would not exist if incumbent candidates were compelled to incorporate discordant or disruptive expression in their campaign rallies and other

events, so too would it be threatened if candidates are

not free on social media to control their own political

and electoral messages. Under the First Amendment,

the government can no more compel a candidate to

permit a message he does not like on his non-government resourced social media page than it can compel

him to place a sign for an opposition candidate in his

front yard.

At a minimum, clarity is needed “to ensure that

ambiguity does not chill protected speech.” FCC v.

Fox Television Stations, Inc., 567 U.S. 239, 253–54

20

(2012). Already, in some circuits, the test for state

action is so unpredictable that NRSC members and

other candidates may refrain from fully exercising

their First Amendment rights rather than risk litigation that could disrupt their campaign. Indeed, an

elected school board member in the Ninth Circuit case

“decide[d] the juice is not worth the squeeze” and

closed his public Facebook page. CA9 Pet. Br. 34; see

also id. at 32 (highlighting potential “chilling effect”).

This self-censorship harms not only the candidate,

“but society as a whole, which is deprived of an uninhibited marketplace of ideas.” Hicks, 539 U.S. at 119;

see Buckley, 424 U.S. at 14–15, 52–53.

This Court must protect the free speech rights of

all candidates, including elected officeholders, by once

again reinforcing “our profound national commitment

to the principle that debate on public issues should be

uninhibited, robust, and wide-open.” Bennett, 564

U.S. at 755 (internal quotation marks and citation

omitted). The Court should therefore recognize that

incumbents communicate about their jobs as a key

and necessary part of their electoral advocacy and

that they do not lose the ability to control their political message on social media when they discuss such

matters. This principle must be set forth clearly so

that electoral advocacy is not chilled.

21

CONCLUSION

The Court should affirm the decision of the Sixth

Circuit and reverse the decision of the Ninth Circuit.

Respectfully submitted,

Michael E. Toner

Brandis L. Zehr

Jeremy J. Broggi*

Boyd Garriott

WILEY REIN LLP

2050 M St NW

Washington, DC 20036

(202) 719-7000

JBroggi@wiley.law

Ryan G. Dollar

General Counsel

Blake D. Murphy

Deputy General Counsel

NRSC

425 Second Street, NE

Washington, DC 20002

*Counsel of Record

Counsel for Amicus Curiae

June 30, 2023