“To misuse power…one must possess it in the first place.”
Lindke v. Freed - In a unanimous decision on March 15, 2024, the United States Supreme Court provided a test to determine whether public official’s social media posts are considered “state action” for purposes of the First Amendment.
At issue was the Facebook account of a city manager, Freed. Freed had originally created a private Facebook profile and subsequently converted his account to a public “page” where anyone could view his posts and leave comments. Upon his appointment as city manager, Freed updated his Facebook page with a photo of himself in a suit with a city lapel pin, and added his title, the city’s website, and the city’s general email address to the “About” section of his page. Freed continued to run the page himself, posting primarily about his personal life but also posting job-related content. Freed frequently received and replied to comments from city residents and would occasionally delete unwelcome comments.
Following the COVID-19 pandemic, one user, Lindke, began commenting on Freed’s posts expressing his unhappiness with the city’s pandemic response. Freed removed the comments and eventually blocked Lindke, leaving him able to view but unable to comment on Freed’s page. In response, Lindke brought an action under 42 U.S.C. § 1983 for violation of his First Amendment rights arguing that Freed’s Facebook page was a public forum, and deleting unfavorable comments and blocking users who made them was impermissible viewpoint discrimination.
The District Court granted summary judgment to Freed, based on the “prevailing personal quality” of his posts and lack of “government involvement” in his account. The Sixth Circuit agreed, explaining that an official’s activity is considered a state activity if the official is required to maintain a social media account under state law, the official uses state resources or staff to run the account, or the account belongs to an office, rather than an individual officeholder. However, in a separate case involving a similar question, the Ninth Circuit had held that the determination of whether public officials’ social media accounts were state action depends on the “appearance and content” of the pages.
Examining the Sixth and Ninth Circuit approaches to the issue, the Supreme Court rejected the Ninth Circuit’s “appearance and content” standard and determined that for a public official’s posts to be attributable to the State, the public official (1) must possess actual authority to speak on the State’s behalf; and (2) must have purported to exercise that authority when making the social media post.
The Court explained that the public official’s state authority “must be real, not a mirage” and must come from a statute, ordinance, regulation, custom or usage. The Court further noted that the “appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.” The Court cautioned against using “excessively broad job descriptions” to conclude the public official has authority to speak on behalf of the government, explaining that the relevant inquiry is whether making official announcements “is actually part of the job that the State entrusted the official to do,” and not whether it could fit within the job description. The Court remanded the case to the Sixth Circuit for consideration under this new test.
This decision provides some clarity on the use of social media that public officials should keep in mind.
The Court acknowledged that the line between private and state action can be blurry but emphasized that public officials have their own First Amendment rights – including the right to speak about their employment in a personal capacity. Disclaimers and designations – either personal or official – may help to provide clarity on whether the social media page is personal or one that purports to speak on behalf of the government. However, the Court noted that such disclaimers cannot be used to insulate government business from scrutiny by posting on a personal page.
For ambiguous or mixed-use pages, like Freed’s, courts must conduct a fact-specific analysis of the content and function of the posts to determine whether they are state action. Similarly, because Freed deleted comments and blocked Lindke, both actions must be examined. The Court cautioned that blocking on a mixed-use page requires consideration of whether each post the blocked user wishes to comment on is state action – which may increase the chance of liability. For deleted comments, the only relevant posts for the First Amendment analysis are those from which the comments were removed.
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