Supreme Court Sets First Amendment Rules for Public Officials’ Use of Social Media

04.30.2024

On March 15, 2024, the United States Supreme Court issued a unanimous opinion addressing the question of whether a public official who prevents someone from commenting on the official’s own social media page violates the First Amendment. 

In Lindke v. Freed, James Freed, City Manager of Port Huron, Michigan, operated a private Facebook account that allowed any person to view and comment on Freed’s posts.  Posts on Freed’s account were primarily related to his personal life, but he also posted information related to matters of public concern and solicited feedback from the public. 

Freed made several posts to the account in relation to the COVID-19 pandemic.  Facebook user Kevin Lindke responded to some of these posts with comments expressing dissatisfaction with the City’s pandemic response.  Freed deleted these comments and later blocked Lindke from commenting on the account.  Lindke brought a lawsuit, alleging that Freed, by acting in his capacity as City Manager to prevent Lindke from speaking on Freed’s personal Facebook page, violated Lindke’s First Amendment rights. 

The First Amendment generally protects private citizens’ free speech, while generally prohibiting the government from restricting free speech.  In other words, the First Amendment regulates state action, not private conduct.  Therefore, the Supreme Court reasoned that the case depended on whether Freed acted in his capacity as City Manager on his Facebook account, or as a private citizen, exercising his own free speech rights to control the content of his personal Facebook page. 

The Court sent the case back to the lower courts to resolve this question, and created a two-pronged test for courts to apply when considering whether social media use is “state action” for purposes of a First Amendment lawsuit: State action exists if an official (1) possesses actual authority to speak on the state’s behalf, and (2) purports to exercise that authority when speaking on social media.

With regard to the first prong, for an official to “possess actual authority” to speak, they must speak on a subject matter within their authority, and they must be authorized to speak by “statute, ordinance, regulation, custom, or usage.”  “Custom” and “usage” are further defined to mean “persistent practices of state officials” that are “so permanent and well settled” as to have the force of law.  The Court explained that such practices must be “longstanding” and recognized as authoritative.

On the second prong, an official “purports” to speak on behalf of the state when speaking in their official capacity or in furtherance of their official responsibilities.  Determining whether these conditions exist depends largely on context.  The Court illustrates this in a hypothetical: a school board president announcing a policy decision at a board meeting likely constitutes state action; however, making the same announcement at an informal gathering likely does not. 

The Court stated that ambiguous cases like Freed’s require fact-specific analysis.  That said, the Court places the burden on the plaintiff to show that an official purports to speak on behalf of the state; this protects the constitutional rights of officials to speak about public concerns in their private capacities, including matters within the scope of their authority.

In another case addressing somewhat similar circumstances, O’Connor-Ratcliff v. Garnier, two trustees of a California school district operated personal Facebook accounts that were “public,” meaning any Facebook user could view their pages.  Two community members, Christopher and Kimberly Garnier, left a large number of hostile and irrelevant comments on the Trustees’ posts. Specifically, the Supreme Court noted that the couple “began posting lengthy and repetitive comments on the Trustees’ social-media posts—for instance, nearly identical comments on 42 separate posts on O’Connor-Ratcliff ’s Facebook page and 226 identical replies within a 10-minute span to every tweet on her Twitter feed.” The Trustees deleted the Garniers’ posts and blocked them from further posting, leading the Garniers to sue claiming violation of their First Amendment rights.  In ruling on the case, the United States Court of Appeals for the Ninth Circuit articulated a different test for “state action,” and found that school district trustees could be held liable for First Amendment violations.  In a companion ruling to the Lindke case, the Supreme Court held that the Ninth Circuit's test was incorrect, and that future courts should apply the test established by the Supreme Court in the Lindke case. 

The Supreme Court’s ruling in Lindke applies in all 50 states and makes clear that, in the context of public officials using social media, “state action” for First Amendment purposes does not occur unless an official acts with actual authority from the State.

Parts of the Lindke opinion suggest precautions public agencies and officials should take to protect against similar lawsuits, including disclaimers on personal social media accounts.  For example, the Court stated that if Freed’s Facebook account included a disclaimer stating it was his personal account, he would be entitled to a “heavy (though not irrebuttable) presumption” that his activities were not state action.  Officials may also speak on subject matters outside their jurisdiction with minimal risk of engaging in state action.

The Court also noted an important distinction between blocking users and deleting individual comments on social media.  A public official may engage in state action with respect to some, but not all the posts on their social media account.  Deleting comments only on personal posts unrelated to government duties likely would not risk liability.  However, blocking a user from commenting on any and all posts could constitute state action and create a risk of liability.

Public officials should be aware of the Court’s suggested precautions to avoid exposing themselves to liability under the rule of Lindke.

The case also serves as a reminder to be aware of existing Brown Act rules restricting the members of a legislative body from directly responding to the social media communications of other members of the same legislative body.  Pursuant to AB 992, effective January 1, 2021, the Brown Act authorizes individual Board/Council Members to engage in conversations with the public on an “internet-based social media platform to answer questions, provide information to the public, or to solicit information from the public regarding a matter that is within the subject matter jurisdiction of the legislative body.”  Board/Council Members, however, are not authorized to use social media to discuss among themselves business within the subject matter jurisdiction of the legislative body.  Additionally, Board/Council Members are prohibited from responding directly to any post and/or comment that is made, posted, or shared by any other Board/Council Member of the same legislative body.  Additional information on AB 992 can be found in our alert. 

Should you have any questions concerning the topic of this alert, please do not hesitate to contact the authors or your usual counsel at AALRR for clarification and guidance.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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