The Intersection of Public Service, Social Media, and the First Amendment

The Supreme Court recently decided two cases involving the intersection of social media, the First Amendment, and public officials. In those cases, the Court was confronted with whether an individual with a social media account could rightfully delete comments or block users from interacting with the account.

The Court initially heard the case of Lindke v. Freed. In that matter, James Freed created a private Facebook account sometime before 2008. Freed eventually turned the account into a public “page” which permitted anyone to interact on the posts. Freed was appointed city manager of a town and identified himself as such. He continued to use the page, but typically posted only about his personal life. He would also include information related to his work and solicited feedback about what the city was doing.

During COVID-19, Freed’s posts would sometimes contain information related to his work. Kevin Lindke began commenting on those posts, voicing his displeasure for what the city was doing and its approach to the pandemic. Freed initially deleted the comments, but eventually blocked Lindke entirely. Lindke sued and argued that his First Amendment rights were violated when Freed blocked him.

The Supreme Court addressed the issue of whether a public official's actions on social media platforms constitute state action under §1983, which provides a cause of action against individuals who deprive others of federal constitutional or statutory rights under the color of state authority.

The Court outlined a two-pronged test to determine whether a public official's social media activity constitutes state action:

1. The official must possess actual authority to speak on behalf of the state on a particular matter.
2. The official must purport to exercise that authority when speaking on social media.

After deciding this matter, the Court addressed the case of O’Connor-Ratcliff v. Garnier which involved school board trustees deleting comments and blocking users interacting with the trustees’ public pages. The Court ruled that this case needed to be re-addressed at the lower levels using the framework outlined above.

District officials should take note that these cases make clear that whether a social media page is personal is only part of the equation. The Court emphasized that the appearance and function of the social media activity are relevant but cannot compensate for a lack of state authority. The official's conduct must be fairly attributable to the state, and there must be a connection between the official's authority and the subject matter of the speech.

Furthermore, the court notes that if the official does not speak in furtherance of their official responsibilities, they are speaking with their own voice, not as a representative of the state. Therefore, whether a social media post is considered official or personal depends on factors such as content, context, and whether state authority is expressly invoked.

Ultimately, any question in this area is very fact specific. Public officials should be wary of their actions on social media, particularly when it comes to deleting and blocking comments. An official can still be liable for blocking and deleting comments when the standards are met.