U.S. Supreme Court Decides New Rule for Government Officials and Social Media

CATEGORY: Blog Posts
CLIENT TYPE: Public Employers
PUBLICATION: California Public Agency Labor & Employment Blog
DATE: Apr 02, 2024

On March 15, 2024, the U.S. Supreme Court issued a long-awaited decision in Lindke v. Freed an important case concerning state action, the First Amendment, government officials, and social media.  The decision provides clarity on how First Amendment free speech standards apply to government officials in curating public comments on their social media pages.

In Lindke v. Freed, Port Huron City Manager James Freed maintained a public Facebook page that anyone could see and comment on.  Freed posted primarily about his personal life, but also posted content related to his job as City Manager and solicited feedback from the public on issues of concern.  Freed responded to comments from city residents about community matters, and occasionally deleted comments that he considered “derogatory” or “stupid.”  During the COVID-19 pandemic, Freed posted about the pandemic.  Kevin Lindke commented on some of Freed’s posts and expressed discontent with the city’s response to the pandemic.  At first, Freed deleted Lindke’s comments.  Then, Freed blocked Lindke from commenting on Freed’s posts altogether.  Lindke sued Freed for violation of his First Amendment rights, alleging that Freed engaged in state action when he deleted Lindke’s comments and then blocked him.  Freed prevailed at the District Court and the Sixth Circuit affirmed.  Lindke appealed and the U.S. Supreme Court granted review.

In its decision, the U.S. Supreme Court articulates a test for determining, under federal law, when a government official who prevents someone from commenting on the official’s social media page engages in state action.  For such conduct to be state action, the official must have both:

  1. Possessed actual authority to speak on the state’s behalf on a particular matter; and
  2. Purported to exercise that authority when speaking in the relevant social-media posts.

The first part of the test is based on the fundamental prerequisite that conduct that allegedly causes the deprivation of a federal right must be fairly attributable to the state.  For example, Freed must have possessed actual state authority to post city updates, register citizen concerns, and otherwise communicate with residents on behalf of the city.  Such actual authority must be “rooted in written law or longstanding custom to speak for the State,” and must extend to speech of the sort that caused the alleged rights deprivation.

Under the second part of the test, the official must speak in furtherance of their official responsibilities.  The Court noted that if Freed’s Facebook page had carried a label or disclaimer stating that his page was personal or the views expressed his own, “he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.”  The Court acknowledged that government officials have private lives and their own constitutional First Amendment rights to speak about their job and maintain some control over speech on their personal social media pages.  However, since Freed’s Facebook page was not identified as personal, it allows for the possibility that his page contained a mix of personal posts and posts in his capacity as a government official.  The Court found that this ambiguity requires a fact-specific inquiry into the content and function of each of Freed’s posts from which Lindke’s comments were deleted or from which Lindke was blocked from commenting.

The Sixth Circuit will now review the case in consideration of the U.S. Supreme Court’s decision and the above test.

In consideration of the decision in Lindke v. Freed, public officials may want to consider clearly differentiating between their personal and official social media pages, including placing disclaimers on their personal social media pages (e.g., the page is personal and the views expressed are their own), and keeping their personal social media pages private.

On March 15, 2024, the U.S. Supreme Court also vacated the decision in O’Connor-Ratcliff v. Garnier (Lindke v. Freed’s companion case), and remanded the case back to the Ninth Circuit to review it in a manner consistent with the Lindke v. Freed decision.  The U.S. Supreme Court had granted review of both cases to resolve a split between the Sixth District and the Ninth District on this important issue.  We will keep you advised of developments with Lindke v. Freed and O’Connor-Ratcliff v. Garnier.

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