Supreme Court Sets Test for When Officials’ Social Media Use is State Action
On March 15, 2024, the United States Supreme Court issued a unanimous decision in Lindke v. Freed, No. 22-611, which clarified when a state official can be held liable under the First Amendment for blocking someone from their personal social media account. 42 U.S.C. § 1983 provides a cause of action against any official who deprives someone of a constitutional right, including the First Amendment right to free speech, when the official is acting in their government role such that their acts are attributable to the state. In Lindke, the Supreme Court established a new, two-pronged test to determine when an official’s social media use is state action and, therefore, subject to a § 1983 claim.
The official implicated in Lindke, James Freed, is the city manager of Port Huron, Michigan. He ran a public Facebook page where he posted primarily about his personal life but also posted information related to his job, such as highlighting communications from other officials and soliciting feedback from the public on issues of public concern. Freed’s Facebook page was not clearly designated as being either personal or professional. When Freed posted about the COVID-19 pandemic, Kevin Lindke commented on his posts to express displeasure with the city’s approach to the pandemic. Freed blocked Lindke and deleted his comments. Lindke then sued Freed under 42 U.S.C. § 1983, alleging that Freed had violated his First Amendment rights. The District Court dismissed the case and the Sixth Circuit affirmed. After articulating the new standard, the Supreme Court remanded back to the Sixth Circuit. The Supreme Court also remanded a companion case, O’Connor-Ratcliff v. Garnier, No. 22-324, to the Ninth Circuit in light of the decision in Lindke.
Under the first prong of its test, the Court held that it is not enough that the official has “some authority to communicate with residents on behalf of” the local government. Instead, the “alleged censorship must be connected to speech on a matter within [the official]’s bailiwick.” The Court pointed out that “[t]he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the [governmental body] entrusted the official to do” [emphasis in original].
Moving to the second prong of the test, the Court held 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.” Because Freed’s social media page “was not designated either ‘personal’ or ‘official,’” this “rais[ed] the prospect that it was ‘mixed use’—a place where he made some posts in his personal capacity and others in his capacity as city manager.” The Court ruled that “[c]ategorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations.”
The Court noted that:
“[h]ard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection.”
The Court therefore decided that:
“it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.”
Further complicating the analysis, the Court differentiated Freed’s “deletion” of the plaintiff’s comment from “blocking” him. It pointed out that “[s]o far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed” but, because “blocking operated on a page-wide basis,” the analysis must determine whether Freed “engaged in state action with respect to any post on which Lindke wished to comment” [emphasis added].
The Court summarized its complex analysis by stating the obvious consequence – “[a] public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
Lindke is important because it is the first time the Supreme Court has ruled on the social media activity of public officials. While the Court strove earnestly to balance the First Amendment rights of government officials using social media with the rights of those reading their posts, officials should be cognizant of the Lindke test. The decision graphically illustrates the risks of using a personal social media account to post about government business and to delete or block comments.
If you have any questions about the content of this update or about implications for your social media usage, please contact us. We are pleased to assist public officials with all First Amendment issues.
This update is provided for informational purposes only and should not be considered legal advice.