Lindke v. Freed, 2024 U.S. LEXIS 1214 (2024) (A public official who blocks someone from commenting on the official’s social-media page engages in state action under 42 U.S.C. § 1983 only if the official both 1) possessed actual authority to speak on the government’s behalf on a particular matter and 2) purported to exercise that authority when speaking in the relevant social-media posts.)

Background

James Freed (“Freed”) originally created a Facebook page in 2008, at which time the page was private and could only be accessed by “friends” of Freed’s. However, in 2014, Freed became the City Manager of Port Huron, Michigan, and converted his page to “public” so that anyone could access and comment on his posts. The activity on his public page consisted of both personal and job-related posts. To illustrate, some posts were about his family, his dog, and Bible verses, while others involved his visits to local school districts as City Manager, press releases from other city officials, and the city’s response to the COVID-19 pandemic. Freed’s readers frequently commented on his posts, and he often replied to them.

Kevin Lindke (“Lindke”), who strongly disapproved of the city’s response to the pandemic, visited Freed’s page and posted a series of comments expressing his opinion. Initially, Freed deleted Lindke’s comments but eventually blocked him entirely so that he could see Freed’s posts but could no longer comment. Lindke then filed suit against Freed under 42 U.S.C. §1983 for violations of Lindke’s First Amendment rights.

The District Court and the Sixth Circuit ruled in favor of Freed and held that Freed’s Facebook page was managed in his private capacity, and because only state action can give rise to liability under § 1983, Lindke’s claim failed. The Supreme Court subsequently granted certiorari and issued its decision on March 15, 2024.

Discussion

At the outset of its discussion, the Court noted that a suit under § 1983 must be based on state action rather than private action. Therefore, in this case, the ultimate issue is whether Freed, a state official, engaged in state action or functioned as a private citizen in operating the Facebook page. The Court recognized that state officials are private citizens with their own constitutional rights, and simply because Freed was a state official does not necessarily mean that his posts constituted state action.

The Court then established the following two-part test: a public official who blocks someone from commenting on the official’s social-media page engages in state action under § 1983 only if the official both 1) possessed actual authority to speak on the government’s behalf on a particular matter and 2) purported to exercise that authority when speaking in the relevant social-media posts. The first prong of the test is satisfied when the individual has authority derived from written law or longstanding custom to speak for the government. In other words, the act of speaking for the government must be part of his official duties. It is insufficient that Freed’s Facebook page looked and functioned like an outlet for city updates and citizen concerns; rather, it must be shown that Freed had state authority to post city updates and register citizen concerns.

As for the second prong, the Court stated that an individual purports to exercise state authority when he speaks in his official capacity or uses his speech to fulfill his official responsibilities. When making this determination, it is important to examine the context of the speech. For example, if Freed’s page was labelled as his “personal page,” he would be entitled to a presumption that his posts were personal. However, Freed’s page did not contain such a label and included a mixture of personal and job-related posts; therefore, the content and function of his posts must be carefully considered. The Court noted that a public official does not necessarily purport to exercise state authority simply by posting job-related information. Further, the Court warned that public officials who do not keep personal posts in a clearly designated personal account expose themselves to greater potential liability.

Ultimately, the Court did not decide whether Freed acted in state or private capacity. Instead, they vacated the judgment of the Sixth Circuit and remanded the case for further proceedings. The lower courts were directed to apply the two-part test as set forth above in making their determinations.

Practical Advice

After Lindke, public officials should exercise caution when posting both personal and job-related information on the same social media page. Though a post about job-related information on a personal page does not automatically constitute state action, the post may be construed as state action depending on its context. Further, Lindke suggests that public officials should clearly designate their personal social media accounts as such. The Court explicitly warned that the failure to do so may expose the individual to greater potential liability. A label or disclaimer on a social media page would create a strong presumption that the page’s content is personal.