The U.S. Supreme Court has established guidelines for determining when a public official’s use of a private social media platform such as Facebook, X or Nextdoor constitutes public speech that cannot be censored.
State and local governmental entities, including public school boards, should immediately adopt or update social media policies to guide officials on the limits that must be observed when posting on social media.
The landmark rulings handed down on March 15, 2024, came in a pair of decisions – a unanimous opinion in Lindke v. Freed and a per curiam opinion in a companion case, O’Connor-Ratcliff v. Garnier. Together the rulings resolve a split among the federal appellate courts about what constitutes “state action” in the context of a public official’s use of social media in communicating with their communities.
Both cases focused on whether an official’s blocking of comments or responses to such communications constitutes censorship in violation of the First Amendment.
Background
The defendant in Lindke v. Freed, James Freed, was appointed City Manager of Port Huron, MI, and updated his Facebook page to reflect his new government position. His Facebook account included his title, a link to the city’s website, and the city’s general email address. Freed posted mainly about his personal life, but also posted information related to his city job. Freed’s posts sought feedback from the public and garnered comments from the community.
Kevin Lindke responded to several of Freed’s posts and criticized the city’s COVID-19 policies. Freed initially deleted Lindke’s comments and later blocked his account. Lindke filed a civil rights suit that accused Freed of violating his First Amendment rights.
In O’Connor-Ratcliff v. Garnier, the Court weighed similar claims against two members of the Ponway Unified School District Board of Trustees who created Facebook accounts to promote their campaigns for office. After they won their elections, the two continued to use the accounts to post about school district business and their duties as trustees. When Christopher and Kimberly Garnier posted critical comments, the trustees initially deleted the comments and later blocked the Garniers’ accounts from commenting. Like the plaintiff in Lindke , the Garniers also sued under 42 U.S.C. Section 1983, alleging violation of their First Amendment rights.
Two-Prong Test
The Court announced a two-prong test to determine whether a public official’s speech on social media is attributable to the state. If the official “(1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he[/she] spoke on social media,” then the public official may have violated the First Amendment by blocking negative comments to the initial social media post.
In both cases, the justices instructed the lower courts to review the cases and apply the new test.
Analysis
The two-prong test demands a fact-intensive inquiry. To satisfy the first prong, the state official’s initial act of posting must be traceable to the state’s power or authority. A social media post does not constitute state action simply because a public official made the post; instead, it must be within the public official’s duties and powers to post about such topics to constitute state action. Such duties must result from statute, ordinance, regulation, custom, or usage.
To establish the second prong, the state official must be speaking either in their official capacity or pursuant to fulfilling their duties in accordance with state law. Thus, when a state official’s social media post is not made in their official capacity or in furtherance of such duties, the official is speaking in a personal capacity, and state action is not found.
If both prongs are satisfied, the official’s act of blocking or deleting a user’s response to the initial post likely constitutes censorship in prohibition to the First Amendment.
Key Takeaways
- If an official possesses actual authority to speak on behalf of a governmental entity and purports to exercise that authority when speaking, the official may be held liable for deleting or blocking an individual's comments as a violation of that individual’s First Amendment rights.
- Government officials should exercise caution when posting about their official duties on social media.
- Government officials who post on social media for personal reasons should include a disclaimer that the views expressed therein are strictly their own.
- State and local government officials should carefully review and update existing social media policies and procedures, or consider adopting such a policy to ensure compliance with Fridays’s opinions.
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