BlogLine

Public officials, social media, and the First Amendment

4/2/24

By: Jacob E. Daly

When a public official uses a personal social media account for job-related purposes, does he or she violate the First Amendment rights of a person who posts negative comments on the page by deleting the comments or blocking the person from posting further comments? The answer to this question depends on whether the public official was engaged in state action when undertaking such conduct. 

This was the issue confronted by the U.S. Supreme Court in Lindke v. Freed. James Freed is the City Manager for the City of Port Huron in Michigan. He created a Facebook account when he was in college, and he continued to use that account after being appointed City Manager. He posted both personal and job-related content on his page, and members of the public often commented on his posts. One such person was Kevin Lindke. Lindke disagreed with how the City responded to Covid-19, and he posted critical comments about that on Freed’s Facebook page. In response, Freed deleted Lindke’s comments and eventually blocked Lindke from posting further comments on his page. 

Lindke sued Freed under 42 U.S.C. § 1983 for violating his right to free speech under the First Amendment. Specifically, Lindke alleged that Freed’s Facebook page is a public forum and that, therefore, deleting his comments and blocking him from the page constitute unlawful viewpoint discrimination. Because liability under § 1983 depends on whether the public official acted under color of state law, the issue was whether Freed acted in his private or public capacity when he deleted Lindke’s comments and blocked him from the page. The difficulty in assessing this issue is that public officials are also private citizens who do not relinquish their constitutional rights when they assume public office, and so the line between personal and official communications is often blurred. 

Mindful of this concern, the Court held unanimously that a public official’s communications via social media are state action only if he or she (1) had actual authority to speak on the public entity’s behalf, and (2) purported to exercise that authority when speaking on social media. To satisfy the first prong of this test, the public official “must have actual authority rooted in written law or longstanding custom to speak for” the public entity, and that authority “must extend to speech of the sort that caused the alleged rights deprivation.” To satisfy the second prong of this test, the public official’s speech must have been in furtherance of his or her official responsibilities. Context matters, and so the second prong is not necessarily satisfied simply because a public official comments about a matter that is within his or her authority. The post’s content and function are the most important considerations. 

Because the Sixth Circuit used an incorrect test, the Court did not resolve Lindke’s claim against Freed. Instead, the Court vacated the Sixth Circuit’s judgment and remanded the case for reconsideration in light of the new test. If Freed’s speech on his Facebook page is determined to satisfy the new test, and therefore constitutes state action, Lindke may have a valid claim against him. But, if the new test is not satisfied, and Freed was therefore acting in his personal capacity, Lindke’s claim will be invalid. 

The new test adopted by the Court requires a careful balancing of the factors. Merely being a public official is not enough for the test to be satisfied. The Court explained, “The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of [a public entity], and [public] officials have private lives and their own constitutional rights.” Not surprisingly, therefore, applying this test requires a fact-intensive inquiry. 

Nevertheless, the Court did not leave public officials without guidance. For example, the Court advised public officials to know when local ordinances and customs or usages authorize them to speak on behalf of the public entities by which they are employed. Thus, if speaking on a particular topic is part of a public official’s job duties, the Court warned that censoring criticism of such speech may not be constitutionally permissible. This is why the Court highlighted the importance of public officials being aware that they have a choice about the capacity in which they speak. According to the Court, if a public official’s social media page notes that it is his or her personal page, or if it contains a disclaimer such as “the views expressed are strictly my own,” the speech is more likely to be considered personal. Conversely, the Court noted, if a public official posts a comment on a social media page that belongs to the public entity or is used only by people who occupy a particular public office, the speech is more likely to be considered state action. 

The Court acknowledged that applying the new test is particularly difficult when a public official uses the same social media account for both personal and official purposes. This difficulty is exacerbated when the public official’s job duties involve regular interaction with the public. For personal speech, deleting a comment by a member of the public is easy enough. But, blocking someone from making any comments is risky. The Court cautioned public officials who consider this option: “If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” 

Social media presents a conundrum for public officials because it is such a popular and easy way of communicating with family and friends on the personal side and with constituents on the official side. But, despite the convenience of social media, public officials cannot curtail the First Amendment rights of the public to criticize them. As the Court recognized in Lindke, however, public officials do not forfeit their own First Amendment rights just because they hold public office. What public officials should learn from Lindke is that they must carefully separate their personal speech from their official speech so that everyone’s – the public’s and their own – First Amendment rights are protected. 

For more information, contact Jacob Daly at jacob.daly@fmglaw.com or your local FMG attorney.