[author: David Mathues]*

Few people would call “social media” or “Supreme Court decisions” sources of national unity. That perception makes it ironic that, earlier this year, a case about social media managed to unify the Supreme Court.

Lindke v. Freed, 601 US 187 (2024), asked when a public employee’s actions on social media, such as blocking critics, qualifies as “state action,” and is thereby subject to the First Amendment and liability under 42 USC § 1983 for constitutional violations under “color of law.” In a unanimous opinion written by Justice Amy Coney Barret, the court held that a plaintiff must show that the government employee “(1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” Id. at 204.

Lindke was a win for government employees, but not a free pass to block their critics on social media. Public employees (and lawyers who advise them) should understand what Lindke did, and did not, decide in order to reduce their risk of liability.

The Supreme Court’s Ruling in Lindke

Before Lindke, most of the federal courts of appeal held that a government employee qualified as a “state actor” when banning critics on his or her allegedly personal social media page if the defendant’s purportedly private actions bore “sufficiently close nexus” to the state that they should be “fairly treated as that of the state.” Davison v. Randall, 912 F.3d 666, 680 (4th Cir. 2019) (internal citations omitted); see also Garnier v. O'Connor-Ratcliff, 41 F.4th 1158, 1174 (9th Cir. 2022) (agreeing with Davidson); Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021) (adopting similar test to Davidson); Knight First Amend. Inst. at Colum. Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019) (mostly following Davidson).

But the “close nexus” test is far from precise or objective. Indeed, Davidson candidly declared that determining “state action” in this context was “a matter of normative judgment” without clear criteria. Id. at 679–80 (internal citations omitted). In practice, these cases seemed to turn on whether the public employee’s social media account looked official to a causal visitor.

The Sixth Circuit adopted a more formalistic test. It held that a public employee’s social media activity is only “state action” if it was part of the employee’s actual or apparent official duties, or if the employee could not have acted in the same manner but for the authority of his or her office. Lindke v. Freed, 37 F4th 1199, 1204 (6th Cir. 2022). The Supreme Court granted certiorari in Lindke and Garnier simultaneously to resolve this circuit split.

Oral arguments were held in October 2023, and lasted nearly three hours. The justices pushed back sharply against every proposed test for “state action” for which the various parties, and the US Solicitor General, advocated. See Amy Howe, “Justices weigh rules for when public officials can block critics on social media,” SCOTUSblog, October 31, 2023, available at https://www.scotusblog.com/2023/10/justices-weigh-rules-for-when-public-officials-can-block-critics-on-social-media/ (last visited May 8, 2024). Unlike in many other cases, oral argument gave little indication of how any justice, let alone a majority of them, might rule.

Yet when the decision came, it was short, direct, and unanimous. It set out a two-part test that none of the parties had proposed: a public employee’s actions on social media, including blocking critics, is “state action” only if the employee “(1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” Lindke, 601 US at 204. On the first prong, Lindke emphasized that the employee “must have actual authority rooted in written law or long-standing custom to speak for the State” on the subject matter of the post in question. Id. at 201. Whether the social media account looks or sounds “official” is of limited relevance. On the second, the public employee must be speaking “in his official capacity,” and “in furtherance of his official responsibilities,” instead of as a candidate or private citizen, for the First Amendment to apply. Id. at 201–02.

Lindke Gives Public Employees More Leeway to Moderate Their Social Media Pages

Lindke is good news for most public employees who operate social media accounts for at least three reasons.

First, Lindke provides a clearer standard, so that employees can better judge whether their actions will be subject to First Amendment scrutiny. It is easier for such employees to know in advance whether they have actual authority to speak for the state on a particular topic than to forecast which judge will decide a potential lawsuit, and what that judge’s personal “normative judgment” will be about what conduct should be “fairly attributable to the state.” Garnier, 41 F.4th 1158 at 1169 (internal citations omitted). Moreover, employees can structure their communication to make clear whether they are speaking in an official capacity or merely for themselves. See Lindke, 601 US at 202.

Second, Lindke is simply more favorable to public employees because it sets a higher bar for finding “state action.” Requiring “actual authority” to speak for the state narrows liability for all but the highest executive branch employees (most of whom are elected). Few public employees can speak for the state outside of a specific, narrow field. For instance, a city’s public works director can speak for the city about repairing sewer lines but not on law enforcement matters. A fire chief likewise has authority to speak regarding EMS response times but not on budgetary matters. Cf. Lindke, 601 US at 200–01 (using the example of the director of a state’s department of transportation).

Perhaps most importantly, it is doubtful whether elected legislators ever have “actual authority to speak for the state” on social media. A legislator is by definition only one member of a larger body and only possesses authority when he or she acts in concert with other members of the body. To be sure, a legislator interacts with the public and advocates for or against public policy on a daily (if not hourly) basis, but Lindke made clear that neither of those things are enough for “state action.” Id. at 197, 203.

Third, and most importantly, Lindke focused on the First Amendment rights of public employees, not on the rights of online critics of those employees. The court made clear that public employees do not “relinquish” their First Amendment right to speak about matters of “public concern” or “information related to or learned through public employment.” Id. at 196–97 (internal citations omitted). This includes “editorial control over speech and speakers” on any social media platform the employee uses. Id. at 197.

Put more bluntly, Lindke teaches that public employees have a First Amendment right to deliver their own message on social media in a context of their own choosing. They do not have to yield their online platform to their critics or to online trolls merely because contemporary technology and political culture blurs the lines between public and private life or creates the appearance of being “always on the clock.” Id. at 196. While the lower courts had focuses on

the public’s First Amendment right to the government, see, e.g., Garnier. 41 F.4th at 1185, the Supreme Court barely acknowledged this concern. Perhaps the court understood that people seeking to criticize public employees and public entities online can easily do so elsewhere, such as their own social media page. But whatever the court’s thought process, Lindke’s focus on the First Amendment rights of public employees bodes well for the employees in future cases.

How Much Did Linke Change the Law?

While favorable, Lindke does not give public employees a “get out of court free” card. Top executive officials face the highest risk that they will be found as “state actors” under Lindke if they do not sharply differentiate between personal, campaign, and public social media accounts because, as noted earlier, such officials have the widest scope of authority to speak for the state, and, in practice, are most likely to use state authority through social media. Examining how three pre-Lindke cases might turn out under the new standard illustrates this point.

For starters, the Second Circuit’s 2019 Knight decision held that former President Trump’s blocking of critics qualified as state action because Trump used the account to communicate with, and gauge the opinions of, the voting public, and because “since he took office, the President has consistently used the account as an important tool of governance and executive outreach.” Knight, 928 F.3d at 236. This rationale looks shaky after Lindke, because “outreach” and public relations are not equivalent to using state power. But in Knight, Trump used his Twitter account “to engage with foreign leaders and to announce foreign policy decisions and initiatives.” Id. Presidents wield massive authority in foreign policy, and directly interacting with foreign leaders and announcing foreign policy decisions are exercises of that power. Thus, Lindke’s test for state action would likely be met and the outcome remain unchanged.

Next, there’s the Eighth Circuit’s holding in Felts v. Green, 91 F.4th 938, 943 (8th Cir. 2024), which was issued a few months before Lindke came down. Felts held that the elected “President of the St. Louis Board of Aldermen” engaged in state action by blocking his critics on Twitter. Felts focused on the fact that the defendant was not obligated to follow the city’s social media policies, wielded significant executive and legislative power, and had full authority to speak for his office. Id. at 942–43. Those facts are certainly evidence of authority to speak for the state and might support a finding of state action after Lindke.

But on the other hand, Lindke would also require considering how much power, if any, the President of the Board of Aldermen exercised over whether the jail stayed open. If the State of Missouri had the final word on that question, the defendant could make a strong case under Lindke that he was simply exercising his own First Amendment rights on an issue relevant to his constituents. Ultimately, it is difficult to gauge whether Lindke would change the outcome of Felts, because many of the facts that would drive the post-Lindke analysis do not appear in the decision.

Then, there’s Lindke itself. The Supreme Court did not apply its new test, but vacated the judgment and sent the case back to the Sixth Circuit for “further proceedings consistent with this opinion.” Lindke, 601 US at 204. But the district court’s initial discussion of the record strongly suggests that the defendant will prevail based on a lack of state action. The defendant was a city manager, and there was no evidence he used any city staff of other resources to manage the account. Lindke v. Freed, 563 F. Supp. 3d 704, 712 (ED Mich. 2021), aff'd, 37 F.4th 1199 (6th Cir. 2022), vacated and remanded, 601 US 187 (2024). Most of his posts were personal, and even when he did post about government matters, he “did not make formal announcements through the page, but rather posted press releases that were distributed through the Office.” Id. at 713. Last, and by no means least, there it is doubtful whether the city manager had authority to speak for the city on all aspects of responding to COVID, which was the subject matter of the posts in question.

Lindke’s Impact on Municipal Policies Regarding Employee Social Media Use

Lindke did not address municipal policies governing employee social media use. Most municipalities have such policies, although the policies often do not cover elected officials, who are often the defendant in suits such as Lindke’s. The courts of appeal have addressed municipal social media policies many times, often in the scenario where a former employee alleges that his First Amendment rights were violated when the municipality fired him for violating its social media policy. A thorough analysis of those cases would require a separate article, and practitioners should obviously research the law in their circuit before giving specific advice.

But it is worth nothing that Lindke’s impact on those cases is likely marginal. Lindke’s reminder that municipal employees retain their own First Amendment rights should not bar municipalities from forbidding employees from social media activity that severely compromises the mission of the department for which he or she works. Put differently, while Lindke may cast doubt a very heavy-handed municipal policies that muzzled any commentary on public affairs by municipal employees, it certainly does not require a municipality to tolerate a health department employee who speaks demonstrably false anti-vaccine propaganda on her Twitter account, or a police officer who posts confederate flags and racist memes on his Facebook account—regardless of how “private” the account. The one way Lindke likely does shape municipal policies for employee social media use is that all municipalities should require their employees to include a “disclaimer” on all personal social media accounts.

Suggestions for Managing Liability Risk

As a threshold matter, the only way a public employee can erase any litigation risk is to keep his or her personal account genuinely private, with access limited to family and closer friends, and the content free of job-related topics. Lindke, 601 US at 204. But that option is a non-starter to most elected officials, who see social media outreach as an essential part of their job, and also to their political survival, because their political foes will certainly be active on social media. Cf. id. at 197.

So, where the risk of “state action” and therefore liability cannot be eliminated, counsel should advise their clients to take the following steps to reduce that risk. As lower courts begin to apply Lindke, public employees will get additional guidance (a Westlaw search just before this article was submitted did not reveal any case applying Lindke).

Include clear disclaimers on “personal” social media page. This step has received the most attention because Lindke highlighted that the City Manager’s Facebook page in that case did not include any clear “label” or “disclaimer” that the page or the views expressed thereon were merely his own, and said that if it had, he would have been “entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Id. at 202. Thus, a public employee should include such a label, and should also consider noting his or her editorial control. Something like “This is the personal page of Jane Q. Public-Employee, and I reserve the right to delete comments or block commentators I deem to be crude, abusive, or overly negative” should give that “heavy presumption” against state action should litigation arise.

That said, some commentators have claimed that Lindke allows public employees to incant such disclaimers as a talisman against all liability for their social media activities. These commentators are mistaken. They overread one paragraph in Lindke and ignore the next paragraph, which made clear that “[a]n official cannot insulate government business from scrutiny by conducting it on a personal page” and that the specific facts of each case matter. Id. at 202 n.2. Thus, while disclaimers are a strong tool to limit liability, a “fine print” disclaimer will not trump specific evidence that a public employee had power to speak for the state and used it on social media.

Avoid using government resources to operate the account. This caution is twofold. First, public employees should presume that all activity on any social media account actually owned and operated by the public entity is subject to First Amendment scrutiny. This was not the case in Lindke, where the defendant city manager created the page years before taking that job. It is probably not a common scenario. But if a social media account is designed to be operated by the current office holder and control transferred when a new person takes that role, convincing a federal judge that the account is “personal” would be a tough sell. Similarly, if the public employee uses government staff to manage the account, any activity on that account will likely be seen as state action despite any “fine print” disclaimer. Lindke, 601 US at 203. This makes sense because use of state resources strongly implies possession and use of state power.

Avoid using the account to directly conduct government business. This does not mean avoiding discussions of public issues; as noted earlier, public employees have a First Amendment right to advocate for their views in the public debate. Rather, it means using the account to make announcements, solicit public input, stream proceedings, in a manner unique to public office. Lindke spoke directly to this point with this example: If a mayor “announce[d] exclusively on his Facebook page: ‘Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules,’” he would clearly be engaging in state action because of “[t]he post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere.” Id. at 203. By contrast, Lindke opined that a mayor who reposted an order issued on his city’s website a few hours earlier is likely “engaging in private speech ‘relate[d] to his public employment’ or ‘concern[ing] information learned during that employment.’” Id.

This distinction may strike some as artificial. But it captures a real difference between state and private action. Anyone can repost an order from a government website in order to praise, condemn, or amplify that order. Only a government executive could actually issue such an order and thereby alter legal rights and duties, by typing words into his social media page. More to the point, this distinction comes directly from the unanimous Supreme Court. Ignore it at your peril.

On a related note, public employees should avoid directly soliciting public feedback on any page they want viewed as “personal.” The Fourth and Ninth Circuits relied heavily on such requests for input in finding state action. Garnier, 41 F. 4th at 1165; Davidson, 912 F.3d at 673. And, while Lindke rejected the “close nexus” test those courts applied, it noted that such requests for public comment could show possession, and use of, state power. Cf. Lindke, 601 US at 202 n.2 (noting that inviting forum comment on proposed regulations through social media would be a state action, because it is an exclusively government function). This is not to say that interaction with the public on social media will always equal state action. But such should be done with caution.

Ultimately, public employees can be thankful that the Supreme Court has recognized that their jobs do not erase their own First Amendment rights. In many situations, these employees retain the right to shape their own social media pages and audience as they see fit.

* Hervas, Condon, & Bersani PC