In the first part of a multi-part series, Constitution Daily looks at recent Supreme Court decisions about the evolving world of social media, and the First Amendment challenges faced by governments, their officials, media companies, and the public.
When can government officials decline to publish or block public comments made on their social media accounts? The Supreme Court recently issued its first ruling on the question, and the answer is “it depends.”
In her March 2024 unanimous opinion in Lindke v. Freed, Justice Amy Coney Barrett made the Court’s first attempt at defining the difference between official and personal actions taken by public officials on social media. Barrett looked at a set of complicated factors in a two-part test to determine whether or not the online activity constituted state action.
The Supreme Court was almost presented with a similar question in Trump v. Knight First Amendment Institute, when in July 2019 the Second Circuit Court of Appeals decided that President Donald J. Trump improperly blocked critics from his Twitter account. Trump believed he was acting as a private citizen on an account that pre-dated his election as president. The federal appeals court agreed with a lower court that Trump’s account had become a First Amendment public forum. The Supreme Court, however, vacated the decision in April 2021 after Trump left office.
The Two Appeals at the Supreme Court
Lindke v. Freed from the Sixth Circuit, along with a related Ninth Circuit case, O’Connor-Ratcliff v. Garnier, were the first cases to arrive at the Court on the question of when actions taken by public officials on social media accounts constitute state action. The state action doctrine for the First Amendment requires that a government action needs to exist to trigger a freedom of speech violation. In very limited circumstances, private parties are considered state actors.
In the Lindke case, Port Huron City Manager James Freed used a Facebook page he first created in college to post mostly personal items, but he also discussed communications from the city. Resident Kevin Lindke made comments objecting to Port Huron’s COVID-19 policy on Freed’s page; Freed blocked the comments and then Lindke’s access to the page. Lindke sued under a federal law, 42 U.S. Section 1983, claiming he was deprived by a state actor of his First Amendment right to take part in a public forum. A district court ruled for Freed, saying Freed was acting in a personal capacity on his Facebook page. The Sixth Circuit appeals court upheld that decision.
In the second case, Michelle O’Connor-Ratcliff and T.J. Zane created public Facebook pages to promote their school board campaigns and used the same pages after their election to post updates on board activities and to ask for public comments. Christopher and Kimberly Garnier posted repetitive comments on the board members’ Facebook pages and Twitter account. The board members blocked the Garniers from commenting. A district court ruled directors O’Connor-Ratcliff and Zane acted under “color of state law” as defined in Section 1983 to censor the Garniers. The Ninth Circuit appeals court agreed, applying its own precedent that the board members were state actors when their social media pages had the “appearance and content” of official government pages.
New Tests from the Court
Barrett’s opinion in Lindke v. Freed proposes a new test from the Court for the Sixth Circuit and Ninth Circuit to use. “A public official who prevents 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 State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts,” she concludes.
In the first part, Barrett says Lindke had to prove that “Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed’s bailiwick.” Freed’s authority to speak as a state actor must be derived from sources listed in Section 1983, such as a statute, ordinance, regulation, custom, or usage.
In the second part of the test, Lindke had to prove Freed communicated publicly that Freed had the power to speak on official government matters. “If the official does not speak in furtherance of his official responsibilities, he speaks with his own voice,” Barrett notes.
However, Barrett says the problem Freed faced was that his Facebook page was not labeled as official or private. In that situation, a court would apply a fact-specific investigation of Freed’s posts to see if he was speaking in an official capacity. Content and function were the most important factors in such a test, along with the technology used to delete individual comments or block a user from the account.
Another broader finding in the Lindke decision was the Court’s reinforcement of the right of government officials to speak about public affairs in their personal capacity. Barrett offered a hypothetical of a school board president making a statement at a public event versus a backyard barbecue to clarify this distinction:
“The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs,” Barrett concludes. But if the same official makes a statement clearly evoking official powers, the location does not matter. “An official cannot insulate government business from scrutiny by conducting it on a personal page,” Barrett notes.
The Lindke case, along with the Ninth Circuit case, were remanded for further lower court proceedings consistent with the Supreme Court’s decision.
Life after Lindke
In the Lindke decision’s aftermath, the Supreme Court’s new two-part, fact-intensive and context test will go into effect for pending cases related to First Amendment claims. Applying the tests at a local, state, and national level will present challenges, especially with the Supreme Court estimating that about 20 million people are government officials and employees of some type.
In Pennsylvania, a case now at that state’s Supreme Court, Penncrest School District v. Cagle, offers such a test. Two Penncrest school board members shared content on their personal Facebook pages about school library polices. The school district received an information request under Pennsylvania’s Right To Know Law, which allows the public to see and inspect certain official agency records. The request asserted the Facebook posts were official agency records and that the school district needed to produce all similar Facebook posts from the two directors over an 18-month period.
A Court of Common Pleas decision found that the two directors’ Facebook posts were official agency records, because the directors were expressing opinions related to school business, regardless of location. In April 2023, the Commonwealth Court overturned that decision and offered its own three-part test, including a requirement to prove the directors were acting in their official capacity when speaking. The Pennsylvania Supreme Court must decide if the Facebook posts and comments are public records under the state law, or excluded from the Right-To-Know requirements under the Lindke test. The court is considering case briefs as of June 10, 2024.
Scott Bomboy is the editor in chief of the National Constitution Center.
