By: John P. McLaughlin, Esq. and Joshua C. Hausman, Esq.
Published on: Tue 26th Mar, 2024 By: Campbell Durrant, P.C.
The United States Supreme Court has established a new, two-part test for determining whether a public official violates the First Amendment when the official blocks or deletes comments on the public official’s social media account. In this pair of unanimous decisions, the Court brought clarity to the question of when such action by the public official constitutes “state action” which could create liability under 42 U.S.C. §1983.
Resolving that question requires a fact-intensive analysis. The Court stated that if the public official: (1) possessed actual authority to speak on the state or local government’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social media posts, the official may be liable under §1983 for a violation of the commenter’s rights under the First Amendment of the United States Constitution.
In the lead case of Lindke v. Freed, Freed—the City Manager and Chief Administrative officer of Port Huron, MI—maintained a publicly-accessible Facebook page. Primarily, Freed posted about personal matters. However, Freed also posted about matters related to his job. During the COVID-19 pandemic, Freed posted about his own family’s activities as well as public health data and information relating to the City’s pandemic response. Lindke began posting numerous comments on Freed’s Facebook page which were critical of the City’s response. Freed initially deleted Lindke’s comments before blocking him altogether. Lindke sued under §1983, claiming a violation of his First Amendment rights.
As the Court emphasized, public officials maintain their own constitutional rights to speak as citizens on matters of public concern, as long as that speech is not ordinarily within the scope of their own duties. Therefore, it was not enough that Freed was a public official and that his posts often concerned City affairs. Instead, as the Court explained, the official must first have had actual authority—derived from state or local law, or custom—to act in the relevant manner. As to Freed, this meant the authority to “post city updates and register citizen concerns.”
The official also must have purported to use that authority. The Court offered the example of a school board president who announced at a school board meeting that pandemic restrictions were being lifted, and then shared that information again the following day at a barbecue. The former would constitute state action, while the latter private activity despite the substance being the same. The official, in other words, has the right to choose whether their actual authority is being invoked. The Court noted as well that a public official “does not necessarily purport to exercise his authority simply by posting about a matter within it,” as he might, for example, have acted out of a desire to “raise public awareness” or “promot[e] his prospects for reelection.”
Further, the Court emphasized that a designation of the relevant social media page as either public or private would—while not being conclusive—entitle the speaker to a rebuttable presumption that the posts were personal. Finally, the Court cautioned that a page-wide block (as opposed to individual comment deletion) exposes a public official to greater potential liability if personal posts are mixed with non-personal posts on a single page.
Takeaways:
• Deleting comments or blocking citizens on a social media page may constitute a violation of the citizen’s First Amendment rights if it amounts to “state action” under 42 U.S.C. §1983.
• A public official’s social media activities constitute state action where the official (1) possesses actual authority to speak on the state or local government’s behalf on a particular matter, and (2) the official purported to exercise that authority when speaking in the relevant social media post.
• A public official’s social media activities do not necessarily constitute state action even though the matter relates to their professional responsibilities—the official must not only have possessed the authority, but must have sought to use it.
• The official’s intentions may be ascertained based on the surrounding context.
Bottom Line:
The Supreme Court’s new test provides helpful clarity, but public officials should continue to exercise caution with respect to regulating the speech of citizens on their social media profiles. Best practice is to ensure a clear dividing line between the official’s “private” and “official” social media profiles, including by marking the respective pages as personal or private which, according to the Court, will entitle the official to a presumption that the speech appearing on that page is similarly private or personal.
