In 2 recent decisions, the U.S. Supreme Court declined to adopt a rule that public officials are either always or never state actors on social media. The Court examined the use of public and private social media platforms by public officials and clarified the circumstances under which, even through a personal account, a public official could still be limited by the First Amendment in how they interact with their constituents. The Court confirmed that all public officials possess the constitutional right to use social media for personal purposes and that they can block those who criticize them relative to such personal use without violating the First Amendment.  The typical use of social media by local public officials often blurs and blends personal and official use of electronic devices and accounts.  Where there is a mixed use of a social media platform for private and public purposes, a public official potentially can be deemed to be engaging in “State action”, subject to the First Amendment.  The Court concluded however that it is not whether a social media platform is a public officials’ private or personnel account.   Rather,  public officials cannot block or delete critical postings or communications on a social media platform, where the official has authority to speak on their public employer’s behalf and purports to exercise that authority in the social media communications involved.   

The Court did add in its findings that if the account of a public official carries a label (e.g., “this is the personal page of Charles Smith”) or a disclaimer (e.g., “the views expressed are strictly my own”), such a public official would be entitled to a heavy presumption, even though not automatically conclusive,  that all posts on such a page are personal. The Court noted that:

“Markers like these give speech the benefit of clear context: Just as we can safely presume that speech at a backyard barbeque is personal, we can safely presume that speech on a “personal” page is personal (absent significant evidence indicating that a post is official).”

Conversely, the Court stated that a different context can make the conclusion clear that a social-media account does purport to speak for the government, as when a social media account belongs to the local government or is part of a particular city office, such as the city manager.

Lindke v. Freed,  601 U.S. ___ (2024)(Case No. 22-611)

https://www.supremecourt.gov/opinions/23pdf/22-611_ap6c.pdf

Garnier v. O’Connor-Ratcliff, 601 U.S. ___ (2024)(Case No. 22-324)

https://www.supremecourt.gov/opinions/23pdf/22-324_09m1.pdf

The backgrounds of each case and findings and conclusions of the Supreme Court in each decision is described in greater detail below. 

Lindke v. Freed

Summary of Court Findings and Holding

James Freed began using Facebook by creating his private profile.  He used it to share information with his friends and family members.    He outgrew the “profile” capacity of the platform and changed his profile to a page, allowing for unlimited followers.  It also then became public, allowing any person to follow it.  He also selected the designation on the platform of “public figure”. 

Subsequent to creating his Facebook presence, Freed was appointed city manager in Port Huron, Michigan and he updated his Facebook page to reflect his new job. Although Freed posted about city affairs, the overall content on the page he created before his appointment as city manager tended toward family activities.  He continued to use his Facebook page primarily to share information about his family and his personal life, but included some posts about his work life, including work directive and policies he initiated as city manager.  Freed frequently responded to comments to his posts, including residents of the city regarding city matters.  On occasion, Freed deleted comments he believed to be derogatory or stupid.  During the pandemic, Freed posted personal information and information related to his role as city manager.  A Port Huron resident, Kevin Lindke, began posting some harsh comments regarding the city’s handling of the pandemic.  Freed initially deleted Lindke’s comment and eventually blocked him altogether.  Lindke sued claiming a violation of his First Amendment rights. 

The Supreme Court ultimately considered whether and to what extent a public official could block viewers from a social media page being used for both private and public posts.   The Supreme Court concluded that Freed’s status as a state employee was not determinative, and

“[t]he distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.”

The Court determined that governmental officials have the power to block a resident or constituent from their social media pages,  if the official is not claiming to be speaking on behalf of their government and are not posting on an issue within their official authority.  The Supreme Court indicated the courts must examine the facts of each circumstance and consider whether the official has authority to speak on the government’s behalf and if the official purported to use that authority in writing a post.   A critical aspect of the Supreme Court ruling was that “[t]he appearance and function of the social media account are relevant at the second step, but they cannot make up for a lack of state authority at the first.”

If the public official has authority to speak for the government and the official purports to be acting within that authority, a public official runs afoul of the First Amendment in blocking a person or deleting their posts.  

The use of a personal account or page does not shield a public official from the application of the First Amendment.   The Court cited the contrasting examples of “governmental action”.   Where a mayor makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.”, the Court concluded that such a clear invocation of governmental authority, the  immediate legal impact, and pronouncing such legal dictate with the mayor’s specific role as the executive, result in the conclusion that the mayor is purporting to discharge an official duty.   However, if the mayor takes the step to repeat otherwise available information—for example, by linking to the parking announcement on the city’s webpage—  the Court concluded it would be far less likely the mayor is exercising mayoral authority;  rather he would be engaging in private speech “relate[d] to his public employment” or “concern[ing] information learned during that employment.” [citation omitted].   Posting about some official business, as opposed to exercising official authority in communicating certain governmental matters do not bring the First Amendment into play.  In this regard, the Court noted that a public official’s desire to raise public awareness about certain governmental operations or business, or engaging in campaign activities, would generally be considered personal, not governmental business.

Finally, the Court paid special attention to the nature of the action taken a public official.  The deletion of a comment or post is distinguished from acting to block a person from access to a social media platform.  A deletion can be associated with certain personal or business content postings.  A decision to block is different since blocking operates on a page-wide basis, a court would be called upon to determine whether a public official engaged in state action with respect to any and all posts on which the person being blocked wished to comment.  The Court reasoned:

If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability. [Citation omitted]

The Supreme Court did not determine whether City Manager Freed had violated the First Amendment with his actions to block a user on his Facebook page, but sent the case back to the lower courts to have its new test applied to the facts of the case.

Garnier v. O’Connor-Ratcliff

Summary of Court Findings and Holding

In a companion case, the U.S. Supreme Court reached the same conclusions and applied the same analysis as in the Freed case summarized above.  The two cases raised the same legal issues, but the facts of each were slightly different.

This case involved two school board members who created public Facebook pages to promote their campaigns for election to their school board. While they both had their own personal Facebook pages they used with friends and family, both utilized their public pages to campaign and for issues related to the school district.   After both of them were elected, they continued to use these public Facebook pages.  The pages specifically described them as “Government Official[s]” and noted their official school board positions.  They also continued to post about school district matters, including board-meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates. They further used these Facebook pages to communicate with school district residents and to solicit feedback from them. A couple in the school district regularly posted messages critical of these two board members, resulting in them being blocked.   The couple then sued.

As noted above, the Supreme Court determined that certain speech by government officials can be attributed to the state, and thus subject to First Amendment scrutiny, if the person involved has the authority to speak on the state’s behalf and if the official purported to be exercising that authority on the social media platform.

As with the Freed case, the Garnier matter was sent back to the lower courts for further proceedings consistent with the decision of the Supreme Court. 

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