On March 15, 2024, the U.S. Supreme Court issued a decision in Lindke v. Freed that lays out a two-part test for when a public official’s social media activity constitutes state action. According to the Court, a public official’s posts on social media are attributable to the government if the official had the actual authority to speak on the government’s behalf and the official purported to speak on the government’s behalf.
Background
James Freed started a private Facebook page in 2008. He used the platform prolifically and had thousands of friends. Facebook limits a user’s total number of friends to 5,000, so he made his page public, meaning anyone could view and comment on his posts. He identified himself as a “public figure” on the page.
In 2014, Freed became city manager for Port Huron, Michigan. In his Facebook biography, he identified himself as a father, a husband, and “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” His profile picture depicted him in a suit wearing a city lapel pin. After his appointment to city manager, he posted information on Facebook related to his job, such as information about local school visits, details about the city’s reconstruction of a boat launch, and updates about the city’s efforts to streamline leaf pickup.
Freed also used his Facebook page to solicit feedback from Port Huron residents. Along with his posts about Port Huron and his job as city manager, he continued to post personal content on his page. Both before and after his appointment to city manager, he operated his own Facebook page and never enlisted city staff to use or post on his page.
Freed used his Facebook page to post city-related updates and information during the COVID-19 pandemic. Kevin Lindke commented on Freed’s COVID-19-related posts, voicing his displeasure with how Port Huron was handling the pandemic. Freed deleted Lindke’s comments and ultimately blocked him. After being blocked, Lindke could see Freed’s Facebook page and posts but could no longer comment on them. He then sued Freed under 42 U.S.C. § 1983, alleging Freed had violated his First Amendment rights by blocking him and deleting his comments.
The Court Articulates a Standard
Section 1983 provides a plaintiff with a cause of action against a state or local government official when the official’s action is attributable to the government. Under § 1983, an official’s action may be attributable to a state or local government when a statute, an ordinance, or a regulation authorizes the official to act or when the customs or practices of the government (such as an official’s job description) authorize the official to act.
The critical issue in this case was whether Freed’s actions on Facebook were those of a government official or a private citizen. To resolve this issue, the Supreme Court created the following two-prong test: “[A] public official’s social-media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”
The Court Provides Social Media Guidance for Officials and Employees
The first prong of the Lindke test provides for an easy analysis. Under § 1983, there must be a statute, an ordinance, a regulation, a custom, or a usage that authorizes a public official to speak on behalf of the government for the official’s speech to constitute state action. The Court’s reasoning here is simple: “Every [Section] 1983 suit alleges a misuse of power, because no state actor has the authority to deprive someone of a federal right. To misuse power, however, one must possess it in the first place.” Therefore, a public official doesn’t speak on behalf of the government unless there’s something that provides the official with the power to do so.
As applied to state and local governments, the dispositive question under the first prong is whether applicable state statutes, municipal ordinances, regulations, job descriptions, employment policies, or other customs of the government employer authorize a public official to speak on its behalf.
Only if the government official possessed actual authority to speak on behalf of the government do courts proceed to the second prong of the Lindke test—did the official or employee purport to speak on the government’s behalf in their social media posts?
Court Provides Guidance to Government Officials When Speaking Officially
Public officials generally speak on behalf of the state when speaking in their official capacity. In Lindke, the Court emphasized that how government officials identify themselves on social media is important in determining whether they’re speaking on behalf of the government. The Court specifically encouraged government officials and employees to use disclaimers on their social media accounts, such as “Personal Page of __________” and “Views expressed are strictly my own.” Doing so would entitle a public official to “a heavy . . . presumption that all of the posts on [the] page [are] personal.”
Mixed-use social media accounts, like Freed’s Facebook page, which didn’t include any disclaimers, require context-specific inquiries. The Court offered the following example: A mayor declaring a parking emergency on a mixed-use social media account would constitute speech on behalf of the state, whereas the mayor reposting otherwise available parking emergency information on a mixed-use social media account wouldn’t constitute speech on behalf of the state. Lindke v. Freed,601 U.S. 187 (2024).
Bottom Line
A city official’s speech constitutes state action only if the official had legal authority to speak on the city’s behalf and the official purported to speak on the city’s behalf. If a state or local government official has “official” or government-run social media pages, it’s far more likely a court would determine that speech on such a page constitutes state action; accordingly, deleting comments or blocking people on an official or a government-run social media page violates the First Amendment.
If state or local government officials maintain a mixed-use social media page where they post about government business and their personal life, they’re strongly encouraged to use a disclaimer on the page, such as “the personal page of ______; views are strictly my own.” This would entitle them to a presumption that any speech on the page is private action.
Finally, Lindke v. Freed addresses only when a governmental official engages in state action on social media pages for purposes of a First Amendment analysis. Applicable state statutes such as open-meeting laws and employer policies apply to government officials’ social media.
Chris Nelson is an attorney with Axley Brynelson, LLP. He can be reached at cnelson@axley.com.