This post is Part 1 of a multi-part series. For a more detailed analysis of the issues discussed in this blog post series, please see Local Government Law Bulletin #148.
For federal, state, and local government officials and employees, social media has become an indispensable tool for public engagement. However, navigating the social media landscape presents significant legal risks. The greatest legal risks for units of government spring from the free speech guarantees of the First Amendment and most often arise when a citizen’s comment is deleted from a government social media page or the citizen is blocked from the page altogether.
Lawsuits alleging government censorship on social media platforms have become more frequent over the past decade. Decisions from the U.S. Supreme Court and U.S. Circuit Courts of Appeals have provided clear frameworks for answering some legal questions involving governmental use of social media, while other questions remain unanswered as case law around this subject continues to evolve.
I’m excited to announce a new School of Government bulletin that examines the First Amendment issues that arise when government entities and officials use social media, including
- determining when “personal” social media usage by an individual public official implicates the First Amendment,
- the application of the public forum doctrine to government-run social media pages,
- how the First Amendment protects some online speech against government interference,
- First Amendment principles that apply to comment policies on government-run social media pages, and
- the extent to which elected officials may face consequences for their personal social media activity.
Social Media and the First Amendment: A Guide to the Law for Local Governments is available now. Over the coming weeks, I’ll be sharing selected, adapted portions of the bulletin as a series of blog posts, starting with today’s post.
The First Amendment’s Applicability to Social Media
The First Amendment to the United States Constitution prohibits Congress from making laws that abridge the freedom of speech. Through the Fourteenth Amendment, this prohibition applies to states and their political subdivisions, including county and municipal governments.
In 2017, the U.S. Supreme Court decided its first free speech case involving social media. In Packingham v. North Carolina, the Supreme Court held that a North Carolina law prohibiting registered sex offenders from accessing social media websites was unconstitutional. The Supreme Court’s opinion definitively recognized that an individual’s ability to communicate on social media involves the exercise of protected First Amendment activity. The Court described social media websites as “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard,” noting how such sites “allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox.’”
As government use of social media platforms has increased over the past two decades, many plaintiffs have filed lawsuits alleging that federal, state, or local government officials have violated their First Amendment rights on social media. These lawsuits are typically brought under Section 1983 of the Civil Rights Act of 1871 (“Section 1983”), which authorizes a person to sue and recover damages against a local government or its governing board members, officials, or employees for violating the person’s federal constitutional or statutory rights when the violation is caused by official conduct.
Lawsuits Involving Government, Social Media, and the First Amendment
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.” If the public official was not engaging in “state action”—action on behalf of the government—then the First Amendment is not implicated and the lawsuit cannot move forward. (Though court opinions and this blog use the phrase “state action” to describe action taken on behalf of the government, the phrase also applies to local government employees and officials.) Consequently, determining whether a public official was acting on behalf of the government is the threshold issue in Section 1983 lawsuits involving social media.
For government officials, the line between official and personal social media accounts is sometimes blurry. When is a public official representing the government on social media, and when is she merely representing herself as a private citizen? In 2024, the U.S. Supreme Court announced a new two-part test for determining the answer to the social media “state action” question in Lindke v. Freed. The Supreme Court held in Lindke 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.” For a deeper dive on the Lindke test and what each of these elements mean for local government officials, please refer to my previous blog post on the Lindke opinion or see Section II of the bulletin.
In the time since Lindke was decided in 2024, only a small number of courts have had the opportunity to apply its two-prong test. In these cases, plaintiffs have largely been unsuccessful in their efforts to sue individual government officials. The majority of courts applying the Lindke test have found that a government official defendant did not engage in state action for purposes of a Section 1983 social media claim, often because the plaintiff could not show that the public official had “actual authority” to speak on behalf of the government (see p. 9 of the bulletin for citations to these cases). Several courts have concluded that state legislators lacked actual authority to speak on behalf of state government and therefore did not violate the First Amendment when blocking users or deleting comments from their campaign and personal accounts.
If a plaintiff in a Section 1983 lawsuit proves that a public official meets the two prongs of the Lindke test—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 their right to free speech under the First Amendment. The same is true in a Section 1983 lawsuit involving an official government social media account (e.g., a city or county page). Even when it is undisputed that the government was engaging in official action on social media, the plaintiff must then prove that the government’s actions (such as deleting comments or blocking a user) violated the plaintiff’s First Amendment rights. The Lindke opinion did not reach the question of whether the city manager being sued in that case actually violated the First Amendment by deleting Lindke’s comments or blocking his page access. It also did not address how courts should determine that deleting a comment or blocking a user runs afoul of the First Amendment. This leaves a number of open questions about what types of rules and restrictions government officials may impose on their “official” social media pages without violating the First Amendment.
I’ll address some of those questions and related issues in upcoming posts in this blog series, including how rules for official government social media pages may implicate the First Amendment public forum doctrine, legal pitfalls to avoid in drafting a comment policy for government social media pages, whether local governments may use filters to moderate comments on social media, and how the First Amendment is implicated when elected or appointed officials face disciplinary consequences for their personal social media posts. Stay tuned, and in the meantime, you’ll find more comprehensive discussions of all these topics in the new bulletin.
