On March 15, 2024, the United States Supreme Court handed down its decisions in Lindke v. Freed and O’Connor-Ratcliff v. Garnier, two similar cases which broadly asked when public officials may be liable for their use of social media. As the number of government officials using social media accounts for both personal and official business grows, it can be challenging for civilians to discern whether the official’s ‘speech’ on these platforms is intended to be in their official or private capacity. With the Lindke and O’Connor-Ratcliff decisions, the Supreme Court aimed to clarify this ambiguity.

Personal or Official Facebook Account?

Lindke concerned James Freed, the city manager of Port Huron, Michigan, and whether his Facebook account was strictly personal or also government speech. Weighing in favor of the page being private is the fact that Freed created it when he was a private citizen, and even after his appointment to city manager he maintained the page himself. However, Freed also included his job title on his page and his profile picture included him wearing a city lapel pin. Freed primarily used the page to post about his family and personal life, but he also posted about his job, including occasionally requesting feedback from the public and sometimes engaging with his constituents from time to time when they asked questions.

When the COVID-19 pandemic began, Freed continued using his page for both personal and job-related posts. A local resident, Kevin Lindke, began voicing his disapproval with the city’s response to the pandemic on Freed’s page. Freed initially deleted Lindke’s comments before blocking him, which still allowed Lindke to see Freed’s posts but disallowed him from commenting on them. Lindke sued Freed under 42 U.S.C. § 1983, a federal statute which allows individuals to sue state governments and their employees for civil rights violations committed under the color of state law. Lindke claimed Freed’s actions violated his First Amendment rights because Freed’s Facebook page was a public forum on which he had the right to comment. Lindke claimed that by deleting unfavorable comments and blocking the authors of those comments, Freed had engaged in impermissible viewpoint discrimination.

Blurred Lines of Social Media Posts

The trial court found in favor of Freed, finding that because the majority of content on Freed’s page was personal, the page was maintained in Freed’s private capacity and there was no official action by the state. The Court of Appeals for the Sixth Circuit affirmed, but did comment that various federal courts have taken different approaches to state action when it comes to social media, and that the caselaw in this area is murky. The U.S. Supreme Court granted certiorari to resolve this split.

Writing for a unanimous Court, Justice Barrett noted that the case required determining whether a state official, Freed, was engaged in state action—a baseline requirement under § 1983—or if he was acting as a private citizen. This is a difficult question, especially when the official routinely interacts with the public on social media. In such cases, it may appear that the official is always on duty, leading to the assumption that every action they take is within their official capacity. Therefore, to protect the liberty of state officials, carve outs exist to the state-action requirement for actions taken as part of their personal pursuits.

Justice Barrett commented on how this case exemplified the tension between these two principles of private versus official conduct. That is, Freed did not surrender his First Amendment rights just because he became city manager and so, if he was acting in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights; rather Freed was simply exercising his own. The social media factor could not be overlooked, considering the approximate 20 million state and local government employees across the country, many of whom use social media and many who, like in this case, blur the line between personal and official communication. Considering the relevant factors, the Court held that a public official’s use of social media constitutes state action only if the official possesses the actual authority to speak on the state’s behalf, and the official purports to exercise that authority when they speak on social media.

To Have Authority on State’s Behalf or Not

As to the first prong, this is based in the fact that under § 1983, the conduct must be fairly attributable to the state. Private action, regardless of how ‘official’ it may appear, cannot be traceable to the state for liability purposes. So Freed’s Facebook page—even if it looked and supposedly functioned as an outlet for city communications—must have been granted with the state’s authority to be used as a means of communication. This authority can either come by means of written law or some longstanding custom to speak on the state’s behalf. Without this showing of authority, no state action exists.

Substance and Context

As to the second prong, the official must not only have the state’s authority, they must also purport to use it. That is, to speak in their official capacity requires speaking in furtherance of their official duties. This requires examining not just the substance but also the context of the speech in question. Freed’s page was not strictly designated as either being personal or official, requiring a fact-specific inquiry into the context and function of the posts in question. The Court noted how various factors could weigh in favor of determining personal versus official speech, including:

• The use of a disclaimer denoting a page as strictly personal or official;
• How the account is named and whether official titles are used;
• Who operates the account;
• The substance of the posts and the language employed in them; and
• Whether any state authority is invoked in the post or if it is just repeating publicly available information about the government that can be found elsewhere.

Different Actions Raise Different Questions

The Court also pointed out that the specifics of the technology matters. Deleted comments only call into question the posts where the comment was deleted. However, because blocking restricts access on a page-wide basis, the scrutiny then becomes whether an official engaged in state action with respect to any post upon which a blocked individual wished to comment. Highlighting the need for fact-specific inquiries is that each social media platform has different features which operate differently, such that blocking does not mean the same thing on each platform.

Ultimately, because the Sixth Circuit’s test for state action differed from the test articulated by the Court in Lindke, the judgment was vacated and the case was remanded for further consideration. So too in Lindke’s companion case, O’Connor-Ratcliff v. Garnier, which came up from the Court of Appeals for the Ninth Circuit. O’Connor-Ratcliff concerned two school board members who first deleted comments and then blocked constituents from viewing Facebook pages the officials used to post content related to their office and communicate with the public. Like the Sixth Circuit in Lindke, the Supreme Court found the Ninth Circuit’s test was out of step with the proper approach, and thus vacated and remanded for further proceedings.

Public Officials: Tighten Up Your Social Media

So what does this mean? It is no understatement that social media has transformed how we communicate as a society. This extends beyond personal interactions but to official communications by state and local officials as well. And as Lindke and O’Connor-Ratcliff show, the line between personal versus official speech is not always neatly drawn. For those officials concerned about potential liability when using social media in their personal capacity, they need to ensure it is clear that such speech is indeed being made as a private citizen and not pursuant to some authority granted to them by the state, and not as part of their official duties. Eliminating questions in the public’s mind about whether speech is official state action or just the musings of a private citizen can go a long way in insulating public officials from unnecessary lawsuits.