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SCOTUS weighs in on public officials’ use of social media
RICHARD WEINER
Technology for Lawyers
Published: April 19, 2024
In a unanimous decision, the US Supreme Court has decided that a public official’s use of social media can constitute state action, such that then those officials can be subject to First Amendment and other constitutional challenges for deleting or blocking other users’ comments about those officials.
The case is Lindke v. Freed.
It arose from the social media activities of one James Freed, city manager for Port Huron, Michigan, who had a public Facebook page.
At some point during the pandemic, Kevin Lindke came across that page and posted criticisms of how Freed was handling the pandemic.
Freed deleted his comments and blocked Lindke; Lindke sued Freed for violating his First Amendment rights under 42 U.S.C Sec. 1983.
An associated case was heard at the same time: O’Connor-Ratcliff v. Garnier, a California case that arose when a couple was blocked from school trustees’ personal pages.
The appellate court in O’Connor-Ratliffe had held for the plaintiffs.
The 6th Circuit in Lindke, however, had held for the public official, writing that Freed had maintained his Facebook page on his own time and outside of his official capacity.
Writing for the court in Lindke, Justice Amy Coney Barrett said, “an official cannot insulate government business from scrutiny by conducting it on a personal page… “highlight[ing] the cost of using a ‘mixed use’ social-media account” that includes both personal and government-related content.
The opinion sets up a two-step test for deciding when such personal social media posts constitute state action.
Under the court’s rule, a person challenging the government official’s actions on a personal social media page must show that the official “(1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.”
In other words, a public official can only be accountable for social media posts if that official is making official statements in that social media account. Seems like a good decision.
This has been an open question for a long time, and now this court, in rare unanimity, has decided it.
Law Dork pointed out that this issue had been before the court once before, when then-President Donald Trump blocked people on his personal account on then-Twitter.
The court dropped the case when Trump left office.
Thanks for the analysis by Chris Geidner at Law Dork.