The U.S. Supreme Court decided two cases about when public officials may delete comments or block users on social media. The cases are O’Connor-Ratcliff v. Garnier, involving Trustees of the Poway Unified School District near San Diego, and Lindke v. Freed, involving a City Manager in Michigan. In November 2023, before the Supreme Court issued its decision, LCW published a blog post that describes the facts of the cases and the parties’ arguments. That blog post can be found here.
In O’Connor-Ratcliff v. Garnier, Michelle O’Connor-Ratcliff and T.J. Zane (Trustees) created public Facebook profile pages to promote their campaigns for election to the Poway Unified School District Board of Trustees. After they won election, the Trustees continued to use their public pages to post District-related content. The Facebook pages described the Trustees as “Government Official[s]” and listed their official positions. Christopher and Kimberly Garnier had children who attended District schools, and the Garniers often criticized the Board of Trustees. They posted lengthy and repetitive comments on the Trustees’ social media posts. The Trustees deleted the Garniers’ comments and eventually blocked them from commenting altogether.
The Garniers sued the Trustees under 42 U.S.C. section 1983, alleging the Trustees violated their First Amendment rights to free speech by deleting their comments and blocking them from commenting further. Section 1983 allows individuals to sue public employees and others acting “under color of any statute, ordinance, regulation, custom, or usage” who deprive them of their Constitutional or legal “rights, privileges, or immunities.” The Trustees argued that they were acting as private individuals, not as state actors, so they were not liable for violating section 1983. The Ninth Circuit held that the Trustees were engaged in state action because the “appearance and content” of their Facebook pages appeared official.
On March 15, 2024, the U.S. Supreme Court issued its decisions in both the O’Connor-Ratcliff case and the Lindke case. The Court explained in the Lindke decision its rule for state action under these circumstances. In the O’Connor-Ratcliff decision, the Court overturned the Ninth Circuit’s holding and remanded the case to the Ninth Circuit, instructing it to apply the rule described in Lindke.
In Lindke, the Court held that a public official who prevents someone from commenting on the official’s social media page only engages in state action under section 1983 if the official 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. An official who acts in their private capacity to block a Facebook user or delete comments is not violating the user’s First Amendment rights, rather the public official is exercising their own First Amendment rights.
First, the Court addressed whether the official had the actual authority to speak on the State’s behalf on a particular matter, which is part one of the Court’s two-part test. The Court held that even if the public official appears to be acting in their official capacity on social media, they will not be violating section 1983 unless they also have the authority to speak on the State’s behalf on that issue. The Court explained that “[t]he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.” The official must have authority “rooted in written law or longstanding custom to speak for the State” and that speech must have caused the alleged rights deprivation.
Next, the Court addressed the second prong of the two-part test, whether the official purported to exercise their official authority in the relevant posts. The Court explained that if a public official’s social media page states “this is the personal page of [the official]” or “the views expressed are strictly my own”, there will be a heavy presumption that the official is speaking with their own voice in a private capacity, rather than in an official capacity. On the other hand, if a social media account belongs to a political subdivision or a public office, that would indicate that the official purports to speak for the government. A social media post that expressly invokes state authority to make an announcement that is not available elsewhere would likely be official, while a post that repeats or shares otherwise available information might be personal. The Court gave an analogy from outside the social media context. A school board president’s announcement at a board meeting would likely be state action taken in the board member’s official capacity. But if the board member repeats the same information later at a barbecue with friends, that would be private action taken in a personal capacity as a friend and neighbor.
Finally, the Court explained that the nature of the technology matters to the state-action analysis. If a social media page contains both personal and official posts, and the official deletes comments from a post, only the status of that particular post matters. However, if the official blocks an individual, the blocking operates on a page-wide basis. A court would have to consider the entire social media page and determine whether the blocking prevented the individual from commenting on any official posts. The Court stated that a public official who fails to keep personal posts in a clearly designated personal account is therefore exposed to greater potential liability.
O’Connor-Ratcliff v. Garnier, ___ U.S. ___ (2024); Lindke v. Freed, ___ U.S. ___ (2024).