For government officials, the line between official and personal social media pages may sometimes be blurry. Imagine a county commissioner or city council member who maintains a Facebook page that combines photos of her family vacations with updates about important policy decisions. Is that public official acting on behalf of the government when she blocks someone from accessing her Facebook page or deletes a negative comment? Last week, in Lindke v. Freed, 601 U. S. ____ (2024), the Supreme Court announced a new test for determining the answer to that question. This post discusses key takeaways from the Supreme Court’s decision for any public official who maintains a presence on social media.
When does a public official’s social media activity constitute “state action”?
This was the central question facing the Supreme Court in Lindke. 42 U.S.C. §1983 (“Section 1983”) allows an individual to sue state and local government officials for an alleged deprivation of constitutional rights, but only if the plaintiff can show that the public official was acting “under color of law.” In recent years, courts have wrestled with how to determine when a government official’s conduct on social media—such as blocking users or deleting comments—constitutes state action. When is a public official representing the government on social media, as opposed to merely representing himself as a private citizen?[1] The answer has significant implications in the context of a lawsuit alleging that the public official violated an individual’s First Amendment rights on social media by blocking the individual or deleting the individual’s comments.
Though this post will use the phrase “state action” to describe action taken on behalf of the government, note that this also applies to local government employees and officials. As explained in a footnote to the Lindke opinion, “Because local governments are subdivisions of the State, actions taken under color of a local government’s law, custom, or usage count as ‘state’ action for purposes of §1983.” (citation omitted).
What was the social media activity at issue in Lindke?
James Freed, a city manager of Port Huron, Michigan, ran a public Facebook page. The page described Freed as a father, husband, and “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed posted primarily about his personal life, but also sometimes posted about his role as city manager and answered questions from city residents. As the COVID-19 pandemic unfolded, Facebook user Kevin Lindke began commenting on some of Freed’s posts, criticizing Port Huron’s handling of the pandemic. Freed deleted the negative comments, and eventually, blocked Lindke from being able to comment on his page altogether. Lindke sued Freed under 42 U.S.C. §1983 (Section 1983), claiming that Freed had violated his First Amendment rights by deleting his comments and blocking him from the page. The District Court rejected Lindke’s First Amendment claim, finding that Freed managed his Facebook page only in his private capacity (due in part to the largely personal nature of his posts), which meant Freed’s conduct was not “state action” that could give rise to liability under Section 1983. The Sixth Circuit affirmed this decision and Lindke appealed the Sixth Circuit’s ruling to the Supreme Court.
What is the new test announced by the Supreme Court in Lindke?
In a 9-0 opinion authored by Justice Barrett, the Supreme Court held that “a public official’s social-media activity constitutes state action under §1983 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.”
This is now the threshold test that courts will apply when a plaintiff alleges that a public official violated his First Amendment rights by blocking the plaintiff or deleting the plaintiff’s comments. I’ll examine each of the two prongs of the test separately.
“Actual Authority” to Speak on Behalf of the Government. Importantly, apparent authority to speak on behalf of the government is not enough. The fact that a public official routinely posts about job-related duties—and thus appears to be acting on behalf of the government on his social media account—is not sufficient in and of itself to show that the official is acting on behalf of the government when operating the official’s social media account. Instead, a plaintiff must show that the public official had “actual authority rooted in written law or longstanding custom” to speak on behalf of state or local government via social media.
How might one prove that a public official possessed actual authority to speak on behalf of the government on social media? The Court’s opinion points to the language of Section 1983 itself, stating that the authority may come from “statute, ordinance, regulation, custom, or usage.” Using the example of the city manager whose actions were at issue in Lindke, the Court describes three potential scenarios through which a public official might have actual authority:
- First, a manager would be authorized to speak for the city if a written law gave him authority to make official announcements. The Court offers the example of a city ordinance granting this authority, but a statute or regulation (and perhaps even a written policy) would also suffice.
- Second, even in the absence of a written law, the manager could have actual authority to speak for the city based on a longstanding practice or custom. For example, the Court’s opinion notes that the manager would have such authority if “prior city managers have purported to speak on [the city’s] behalf and have been recognized to have that authority for so long that the manager’s power to do so has become ‘permanent and well settled.’”
- Third, the nature and scope of a public official’s power may give them general authority to speak on behalf of the government regarding a particular subject matter, even if no written law explicitly references authority to speak on social media. “In some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially.” The Court provides an example of a high-ranking state transportation official, whose broad authority over the state highway system could include the authority to speak on behalf of the state with respect to that subject. The Court cautions that the question is not whether the public official’s job description could theoretically include making official announcements, but rather, “whether making official announcements is actually part of the job that the State entrusted the official to do.”
However, the Court goes on to say, a plaintiff must do more than simply prove that the public official had some authority to communicate with residents on behalf of a local or state government. A plaintiff who claims their First Amendment rights were violated must show that the public official’s “alleged censorship” on social media was “connected to speech on a matter within [the public official’s] bailiwick.” The Court provides the following hypothetical:
For example, imagine that Freed [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority—because he had none. For state action to exist, the State must be ‘responsible for the specific conduct of which the plaintiff complains.’ Blum v. Yaretsky, 457 U. S. 991, 1004 (1982).
In other words, when determining whether a public official is engaging in unlawful censorship in violation of the First Amendment by deleting comments on a social media post, the content of the post itself matters. The Court’s opinion indicates that deleting comments on posts regarding matters outside the public official’s scope of authority does not constitute “state action,” even if those posts relate to the state or local government in which the public official serves.
Purporting to Exercise Authority to Speak on Behalf of the Government. Under the new Lindke test, it is not sufficient for a plaintiff to show that a public official had actual authority to speak on behalf of the government—the plaintiff must also show that the public employee was actually purporting to exercise that authority on social media. In the words of the Court: “If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.” The surrounding context of the social media post in question matters. The Court provides an example of a school board official who announces pandemic-related restrictions being lifted in a school board meeting (state action taken in his official capacity) and then subsequently shares the same news at a backyard barbeque with friends (private action taken in his personal capacity). The line between official and private action can be “hazier” on social media, which will require courts to engage in “a fact-specific undertaking in which the post’s content and function are the most important considerations.”
How might a public official ensure that her posts on social media are not purporting to exercise her authority to speak on behalf of the government? The Court suggests that careful labels or disclaimers may serve as strong evidence that a public official did not intend to speak on behalf of the government. Referring to the city manager who was sued in Lindke, the Court opined, “Had Freed’s account carried a label (e.g., ‘this is the personal page of James R. Freed’) or a disclaimer (e.g., ‘the views expressed are strictly my own’), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Nonetheless, the Court warns in a footnote, “[a]n official cannot insulate government business from scrutiny by conducting it on a personal page.” For example, the Court explains that a city mayor is engaging in state action if he streams a city council meeting online only from his “personal” Facebook page.
On the other hand, the Court notes that labels or other context on a social media account can also indicate when an official does intend to speak for the government—”for instance, when an account belongs to a political subdivision (e.g., a ‘City of Port Huron’ Facebook page) or is passed down to whomever occupies a particular office (e.g., an ‘@PHuronCityMgr’ Instagram account).” In other words, if a social media page or account features strong indicators that it belongs to a particular state or local government (or a particular office or agency within that government), action taken on that account will likely be presumed to be an exercise of government authority.
The Court’s opinion also highlights a distinction between posts that directly invoke an official’s authority as opposed to posts that passively repeat, share, or link to information that is available elsewhere. For example, the Court states that a mayor who makes a post announcing that he is suspending enforcement of parking rules pursuant to a municipal ordinance would clearly be purporting to discharge an official duty. Conversely, if “the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office.” In the latter scenario, the mayor is likely engaging in private speech, even though his social media post is sharing information he learned through his role as mayor.
What is the difference between deleting comments and blocking users?
First Amendment challenges to public officials’ social media activity often involve two different types of actions: 1) deleting (or hiding) a user’s comments on posts, and/or 2) blocking a user from accessing a social media page or account altogether. The Court’s opinion in Lindke notes that for purposes of applying the “state action” analysis, these two types of actions are distinctly different.
When analyzing a public official’s deletion of comments, the “only relevant posts” are those from which comments were deleted. The second prong of the test described above looks closely at the content of the post itself and whether the official was purporting to speak on behalf of the government when he posted it. However, blocking someone from an entire page or account functions differently, because it potentially blocks a user from commenting on both official-capacity posts and personal-capacity posts. A court would have to consider whether a public official was engaging in “state action” when they made any post on the page from which the user was blocked—if the answer is yes, then the action of blocking the user from the page may be sufficient to create liability for a violation of First Amendment rights under Section 1983.
As the Court noted, the “bluntness of Facebook’s blocking tool highlights the cost of a ‘mixed use’ social-media account” for public officials. Blocking a user from a largely personal social media account containing even a single post in which an official is exercising her authority to speak on behalf of the government could, in theory, be sufficient to give rise to Section 1983 liability. Failing to “keep personal posts in a clearly designated personal account,” the Court warns, exposes a public official to a higher risk of liability.
What are the key takeaways for local government officials and employees?
1. Local government officials should maintain clear divisions between their “official” and “personal” social media accounts. As the Court describes in Lindke, “mixed use” accounts are risky. If a public official wants to maintain the ability to block individuals from viewing his personal account or delete comments on personal posts, he should avoid any appearance of exercising his authority to speak on behalf of the government on that personal account. Conversely, a public official or government employee who blocks users or deletes comments on a strictly “official” account risks potential liability under Section 1983 for a violation of an individual’s First Amendment rights.
2. If a social media account is clearly held and operated by a particular local government (such as a county or municipality’s page) or a local government department or agency (e.g., police department, parks & recreation department), then public officials and employees should assume that actions taken on that account—such as deleting comments or blocking users—will likely constitute “state action” for purposes of a First Amendment claim under Section 1983. The same analysis applies to a social media account for a particular public office that is passed down from officeholder to officeholder.
3. If a local government official maintains a personal account on social media, the official should consider marking the entire account or page with a label and disclaimer (e.g., “This is the personal page of [official’s name]. The views expressed herein are strictly my own.”). Based on the Court’s opinion in Lindke, an official who uses such a label or disclaimer may be entitled to “a heavy presumption” that the social media page was for personal speech only. However, that presumption is rebuttable, and could be overcome where an official with authority to speak for the government uses their personal page to communicate government speech.
4. Local governments should consider clearly designating the extent to which particular officials or employees are authorized (or not authorized) to speak on behalf of the government via social media as part of their duties. In the event of a Section 1983 lawsuit, such a policy or ordinance may not be dispositive as to whether an individual had “actual authority” to speak on behalf of the government, since that authority could also be proven by custom or usage. Nonetheless, a written policy or ordinance could still serve as strong evidence of the local government’s intent to authorize certain officials or employees to act on the government’s behalf on social media (or conversely, to restrict certain officials or employees from doing so).
So, when does blocking users or deleting comments on a public official’s social media page violate the First Amendment?
Lindke does not answer this question. The Supreme Court solely addresses the threshold question of when a public official is engaging in “state action” by blocking users or deleting their comments on social media. In a Section 1983 lawsuit, if a plaintiff proves that a public official meets the two prongs of the new test in Lindke (had actual authority to speak on behalf of the government and purported to exercise that authority), the plaintiff then must go on to prove that the public official’s actions on social media violated the First Amendment. The Lindke opinion does not reach the question of whether the city manager’s actions violated the First Amendment or discuss how the public forum doctrine (which traditionally applies to speech on government property) may apply to the comment sections of public officials’ social media posts. This leaves a number of open questions about what types of rules and restrictions may be reasonable for government officials to impose on their “official” social media pages without violating the First Amendment.
Keep in mind that prior to Lindke, the Fourth Circuit ruled that the interactive portions of a public official’s Facebook page—areas where the public can post comments or reply to the official’s posts—constitute a public forum for First Amendment purposes. Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). In Davison, the Fourth Circuit held that blocking a user from that forum based solely on his critical comments constituted viewpoint-based discrimination, which violates the First Amendment in every type of public forum. As I’ve described in a previous post about the public forum doctrine and social media, it is possible that a local government or government official may strengthen the case for a court to treat an official social media page as a “limited public forum” by setting out clear, reasonable rules about the subject matter that can be discussed on the page. For example, a local government or government official might consider stating on their social media page that any comments must relate to the official business of the local government. Such a restriction does not discriminate based on viewpoint if applied in a neutral manner—for example, comments that are critical of the local government or government officials would still be allowed under such a rule.
In the years to come, we will undoubtedly have many opportunities to see how courts apply the Lindke test and analyze public officials’ social media activity under the First Amendment. Stay tuned—this will continue to be a fast-evolving area of the law.
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