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How to Identify State Action in the Context of Public Officials Using Social Media

Education K-12 Education

Social media has given public officials the ability to share information quickly and easily with their constituents and followers, even on their own personal social media accounts. When using a personal social media account, an individual, even a public official, can delete from their personal page a commentator’s post if related to a private matter. Comment on your daughter’s volleyball game and a constituent says something derogatory, you may remove the comment without implicating any legal concern. If you also happen to be the board of education president, however, and you use your personal page to comment on recent actions taken by the board resulting in critical comments on your page, deletion of those comments may or may not violate the free speech rights of the commentators.  

On March 15, 2024, the U.S. Supreme Court, in two separate cases, laid out a two-pronged test to determine when a public official acts as a state actor on his or her own social media account giving rise to implicating the First Amendment rights of individuals who leave comments on the page.

Under the test, the law deems a public official a state actor online only if that official had (1) actual authority to speak on the government’s behalf, and (2) purported to exercise that authority when speaking on social media. If a set of facts satisfies both elements, social media users may sue public officials for blocking them, subjecting the government employees and the body they serve to First Amendment scrutiny.

What this test means practically is not necessarily self-evident and would be subject to analysis of the specific facts. We provide further detail regarding the Supreme Court cases in the remainder of this post. There are, however, some simple steps a public official can take who desires both to maintain a social media presence separate from the public body they serve and wishes to avoid First Amendment claims. They include: (1) no risk-do not provide any posts regarding the public body you serve; (2) limited risk-comment only on matters involving the public body in which you have no involvement; (3) some risk-if commenting on a public body matter in which you have some role, add to the post that you are speaking in your personal and not official capacity; in fact it is prudent to state that up-front on your social media page so it is applicable to all posts; and (4) always a good idea-if unsure, contact the public body’s attorney before posting. 

Analysis of Cases:

Lindke v. Freed

In the first case, Lindke v. Freed, the Court considered whether a city manager with a hybrid personal and professional Facebook account could be liable for viewpoint discrimination for deleting and eventually blocking comments from one of his constituents.

The manager, James Freed, created a private Facebook account prior to becoming city manager, and eventually converted it to a public page, meaning that anyone could see and comment on his posts. His Facebook profile also said that he was the city manager of Port Huron and indicated he was a “public figure.” Still, Freed’s posts were “prolifically (and primarily)” about his personal life, with other posts containing information relating to his job.

At the beginning of the Covid-19 pandemic, Freed made various posts about the pandemic as well as his efforts as city manager to mitigate its effects. One of his constituents, Kevin Lindke, responded to some of Freed’s posts by saying that the City’s pandemic response was “abysmal” and that “the city deserves better.” Freed initially deleted these posts, and eventually blocked Lindke altogether, meaning that Lindke could see but could no longer respond to Freed’s posts.

In response, Lindke filed a lawsuit against Freed alleging that, by blocking him, Freed had violated Lindke’s First Amendment rights. Lindke argued that Freed’s Facebook page constituted a public forum, and any attempt to restrict Lindke’s statements in that forum were impermissible viewpoint discrimination. The Court’s analysis of whether Freed could be liable turned on whether, in deleting the posts and blocking Lindke, Freed was engaging in state action.

Lindke argued that Freed’s social-media activity constituted state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. The Court rejected this “appearances” argument and instead used a two-part test. Under the test, a public official’s social media activity constitutes state action only if the official: (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.

In determining if the first element is met, the Court stated that potential sources for determining actual authority may come from written laws that authorize an official to speak on behalf of the state, and in some cases, “the post’s content and function might make the plaintiff’s argument a slam dunk.” An example would be if a city manager announces for the first time on his social media account a new city requirement that he or she has the authority to implement or announce. A post, however, that merely repeats or shares otherwise available information is more likely personal. 

Regarding the second element of the test — a public official “must also purport to use” state authority — the court said that if a public employee does not use his or her speech to further the public official’s responsibilities, “he is speaking in his own voice.” At this stage of the test, “[t]he appearance and function of the social-media activity are relevant…but they cannot make up for a lack of state authority at the first.”

Public Officials Do Not Relinquish Their Own First Amendment Rights on Social Media

The Court further found that Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” In other words, Freed could still make comments on city matters separate and apart from his role as city manager. With that in mind, the Court remanded the decision to determine whether Freed was acting in his private capacity when he blocked Lindke and deleted his comments, in which case the Court said that Freed would not have violated Lindke’s First Amendment rights, he would have been exercising his own.

O’Connor-Ratcliff v. Garnier

In the second related Court case, O’Connor-Ratcliff, the public officials had personal Facebook pages that they shared with friends and family and used to post district-related content, including board-meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates. They also used their pages to solicit feedback and communicate with constituents. Their Facebook pages described them as “Government Official[s]” and noted their official positions.

After two parents began to post repetitive comments, the trustees deleted the posts and blocked the parents’ posts.  The Ninth Circuit, applying its own framework, found that because there was a “close nexus” between the trustees’ use of their social media pages and their official positions, the trustees were state actors.

On review, the U.S. Supreme Court did not endorse the framework applied by the Ninth Circuit. The Court held that action based on the official “appearance and content” of the trustees’ pages was not sufficient to establish state action. Because the approach that the Ninth Circuit applied was different than the one elaborated in Lindke, the Court vacated that judgment, and remanded the case to the Ninth Circuit to re-evaluate the claims based on whether the trustees (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when they deleted and blocked the parents’ posts.

Keep Your Personal and Official Social Media Accounts Separate

These decisions give public officials latitude to have personal social media pages and block content on those pages if the public official did not make the original posts to fulfill his or her formal responsibilities, but instead made the posts in the public official’s personal capacity. Thus, as stated in our recommendations above, the prudent course of action would be to clearly label any personal account as such, e.g., “this is the personal account of John Doe.” Per the court in Lindke, would entitle the official to a “heavy presumption” that all of the posts are personal.  

If you have questions regarding these Supreme Court decisions, please reach out to any Franczek attorney.