A Government Official’s Social Media Activity May Constitute State Action Under Section 1983

CATEGORY: Client Update for Public Agencies, Fire Watch, Law Enforcement Briefing Room
CLIENT TYPE: Public Employers, Public Safety
DATE: Apr 05, 2024

James Freed created a Facebook profile.  He eventually converted his profile so that anyone could see and comment on his posts.  In 2014, Freed updated his Facebook profile, to reflect that he was appointed city manager of Port Huron, Michigan.  He posted items about his personal life, such as photos of his family’s activities.  He also posted information related to his job as city manager, including city events and initiatives, and he solicited feedback from the public on issues of city concern.  Freed often replied to those who would comment on his page, including by answering inquiries from city residents.  From time to time, Freed deleted comments and posts he found to be “derogatory” or “stupid.”

When the COVID-19 pandemic began, Freed posted: 1) personal items (photos of family); 2) general information (COVID case counts and weekly hospitalization numbers); and 3) information about his city manager job (the city’s hiring freeze and a screenshot of a press release about a relief package that he helped prepare).

A man named Kevin Lindke commented on Freed’s post and expressed his displeasure.  Initially, Freed deleted Lindke’s comments.  Then Freed blocked Lindke from commenting at all.  Once blocked, Lindke could see Freed’s posts but could no longer comment on them.

Lindke sued Freed under 42 U.S.C. section 1983, alleging that Freed had violated Lindke’s First Amendment rights.  Lindke argued that Freed’s Facebook page was a public forum, and therefore, Lindke had a right to comment on it. Lindke argued that Freed unlawfully discriminated by deleting unfavorable comments and blocking their authors.

The district court granted summary judgment to Freed, finding that only state action can give rise to liability under section 1983, and that the personal quality of Freed’s posts, absence of “government involvement” with his account, and lack of posts conducting official business meant that Freed managed his Facebook page in a private capacity.  The Sixth Circuit affirmed, noting the test for state action is “whether the official is performing an actual or apparent duty of [their] office” or if they could not have behaved as they did “without authority of [their] office.” The U.S. Supreme Court granted certiorari.

Section 1983 is a federal law that provides a cause of action against every person who, under color of state-action, deprives someone of a federal constitutional or statutory right.  The Court explained it was required to analyze whether Freed, as a city official, engaged in state action or functioned as a private citizen.

While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.  The Court sought to balance those two extremes.  The Court said that the distinction between private conduct and state action turns on substance, not labels.  Private parties can act with the authority of the government, and government officials have private lives and their own constitutional rights.  Categorizing conduct, therefore, can require a close look.

The Court held that a public official’s social-media activity constitutes state action under section 1983 only if the official: 1) possessed actual authority to speak on the State’s behalf; and 2) purported to exercise that authority when they spoke on social media.  The appearance and function of the social-media activity are relevant as to the second factor, but they cannot make up for a lack of state authority as to the first.

The Court explained that the first factor requires that the conduct causing the deprivation be fairly attributable to the government’s power or authority.  Private action lacks this, no matter how “official” it appears.  Here, Lindke argued that Freed’s social-media activity constituted state action because Freed’s Facebook page looks and functions like an outlet for City updates and citizen concerns.  The Court disagreed, finding that Freed’s conduct was not attributable to the State unless he was “possessed of state authority” to post city updates and register citizen concerns, not just that because he has some authority to communicate with residents on behalf of the city.

As to the second factor, the Court explained that generally, a public employee purports to speak on behalf of the government in their official capacity when they use their speech to fulfill job responsibilities.  The inquiry is not whether making official announcements could fit within their job description; it is whether making official announcements is actually part of the job that the government entrusted the official to do.

Here, the Court found ambiguity as to whether Freed’s posts invoked his official capacity.  The Court said that many public officials have governmental authority to interact with the public, and it may not be easy to discern a boundary between their public and private lives.  The Court found that a person suing a public official under section 1983 must show that the official is using their governmental authority in specific posts.  And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.

Finally, the Court cautioned governmental officials who mix private and official speech on the same social media account.  Freed’s Facebook page was not designated either “personal” or “official,” raising the prospect that it was “mixed use”—a place where he made some posts in his personal capacity and others in his capacity as city manager.  Categorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations.  The Court reversed the Sixth Circuit and remanded the case for further evaluation.

Lindke v. Freed, 218 L.Ed. 2nd 121 (2024).

Note:  The Court warned that public officials who use one social media page for both personal and official use expose themselves and their agencies to greater potential liability. 

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