The Supreme Court worked hard in a pair of arguments on Tuesday to find a clear constitutional line separating elected officials’ purely private social media accounts from ones that reflect government actions and are subject to the First Amendment. After three hours, though, it was not clear that a majority of the justices had settled on a clear test.
The question in the two cases was when the Constitution limits officials’ ability to block users from their accounts. The answer turned on whether the officials’ use of the accounts amounted to “state action,” which is governed by the First Amendment, or private activity, which is not.
That same question had seemed headed to the Supreme Court after the federal appeals court in New York ruled in 2019 that President Donald J. Trump’s Twitter account was a public forum from which he was powerless to exclude people based on their viewpoints.
Had the account been private, the court said, Mr. Trump could have blocked whomever he wanted. But since he used the account as a government official, he was subject to the First Amendment.
After Mr. Trump lost the 2020 election, the Supreme Court vacated the appeals court’s ruling as moot.
Justice Elena Kagan said on Tuesday that Mr. Trump’s Twitter feed was in an important sense official and therefore subject to the First Amendment.
“I don’t think a citizen would be able to really understand the Trump presidency, if you will, without any access to all the things that the president said on that account,” Justice Kagan said. “It was an important part of how he wielded his authority. And to cut a citizen off from that is to cut a citizen off from part of the way that government works.”
Hashim M. Mooppan, a lawyer for two school board officials, said none of that implicated the First Amendment.
“President Trump could have done the same thing from Mar-a-Lago or a campaign rally,” Mr. Mooppan said. “If he gave every one of those speeches at his personal residence, it wouldn’t somehow convert his residence into government property.”
The cases argued Tuesday were the first of several this term in which the Supreme Court will consider how the First Amendment applies to social media companies. The court will hear arguments next year on both whether states may prohibit large social media companies from removing posts based on the views they express and…