When is a Government Official’s Social Media a State Action?

by Dennis Crouch

Lindke v. Freed, 601 U.S. ___ (2024) 22-611_ap6c.

This recent decision from the Supreme Court case grapples with the issue of when a public official’s social media activity constitutes state action for purposes of a First Amendment claim under 42 U.S.C. §1983.  I’ve been following the case as part of my work on internet and media law issues.

The case arose after James Freed, the city manager of Port Huron, Michigan, deleted comments and blocked a Port Huron citizen (Kevin Lindke) from commenting on Freed’s personal Facebook page after Lindke used the forum to criticize the city’s handling of the COVID-19 pandemic. Lindke sued Freed, arguing that Freed had violated his free speech rights by censoring him in a public forum.

In a unanimous opinion authored by Justice Barrett, the Supreme Court created a two step test, holding that that a public official’s social media conduct only qualifies as state action under §1983 if the official:

1. possessed actual authority to speak on the State’s behalf on the particular matter at issue, and
2. purported to exercise that authority when speaking in the relevant social media posts.

The Court vacated the Sixth Circuit’s judgment in favor of Freed and remanded for further proceedings consistent with this two-pronged test.  Although there will still be fringe questions, the outcome here gives public officials substantial guidance on how to structure their social media accounts to avoid state action concerns, if they so desire. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”  The case is important because social media is increasingly used by government organizations to push-out information; while those same avenues provide an important public mechanism for voicing opposition.

Section 1983, which was originally enacted as part of the Civil Rights Act of 1871, provides a cause of action against any person who, acting under color of state law, deprives someone of their federal constitutional or statutory rights. The statute reads, in relevant part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C. § 1983. The Supreme Court has interpreted the phrase “under color of state law” to be synonymous with the Fourteenth Amendment’s state action requirement. Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982).  Therefore, to prevail on a §1983 claim, a plaintiff generally must demonstrate that the defendant’s conduct constituted state action. West v. Atkins, 487 U.S. 42 (1988).

Prong One: The Court grounded the first prong of its state action test in the “bedrock requirement that ‘the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.'” Quoting Lugar. Emphasizing that private action lacks the “necessary lineage” to the State’s power or authority, the Court explained that an official must have “actual authority rooted in written law or longstanding custom to speak for the State” on the matter at hand for state action to exist. Importantly, this authority “must extend to speech of the sort that caused the alleged rights deprivation.” The court provided some examples — noting that “state law might grant a high-ranking official like the director of the state department of transportation broad responsibility for the state highway system that, in context, includes authority to make official announcements on that subject.” But, the court reiterated a prior warning against relying upon “excessively broad job descriptions” to conclude that an official has authority to speak for the State. Quoting Kennedy v. Bremerton School Dist., 597 U.S. 507 (2022).  A second example given by the court concluded that a city manager can certainly block citizen comments  on her personal account regarding health-code violations so long as “public health is not within the portfolio of the city manager.”  Moving forward, one difficulty with this analysis stems from the American approach of resting all ultimate responsibility upon the chief executive  or key leader of an organization. In other words, if a city has a responsibility associated with public health, then likely so does the city manager.

Prong Two: Even if the official possessed possessing authority to speak on a particular matter, the person’s use of social media will only be deemed a state action if the official “purported to exercise that authority when speaking in the relevant social-media posts.”  The Court derived the second prong from precedent holding that state action exists where an official “purport[s] to act under” state authority. Quoting Griffin v. Maryland, 378 U.S. 130 (1964).  In other words, even if the public health official is posting on Facebook about public health issues, those posts will be private unless there is some indication that the posts constituted an exercise of authority.  The court provides an offline example distinguishing between an official exercising authority vs speaking in a personal capacity:

Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs.

When moving to social media, the court asks us to look for clues:

• Is the page designated as personal — if so there would be a strong (but not irrebuttable) presumption of no state action?
• Does the post expressly invoke state authority?
• Simply “liking” or re-tweeting official policy is less likely to be seen as an official act.
• Using “government staff to make a post” will very likely be deemed an official act.

As I read through this case, I continually imagine the members of the court having self-concern about their own speech at DC barbeque parties.  “[T]hese officials too have the right to speak about public affairs in their personal capacities.”

A confusing aspect of the decision is that at times the court writes about various levels of social media activity: the social media account as a whole; individual posts; individual pages; and specific features like comment deletion and user blocking.  It appears that each of these can have an impact.  Account level activity (such as stating “personal account” will often be a key determiner, but then mixed use in certain posts may require a more granular analysis.

With the mixed use case it gets a bit more dicey, the Court appears to instruct lower courts to examine the “content and function” of each post to determine whether the official was purporting to exercise state authority in that individual post. The Court contrasted posts that “expressly invok[e] state authority” and have an “immediate legal effect,” which are likely official, with those that simply share otherwise available information, which are probably personal. This post-specific inquiry is designed to ensure that officials retain the ability to speak in a private capacity even on “mixed use” accounts.

Finally, the Court grappled with how specific social media features, namely comment deletion and user blocking, affect the state action analysis. For comment deletion, “the only relevant posts are those from which [the plaintiff’s] comments were removed.”  But because Facebook’s blocking function operates across the entire account, “a court would have to consider whether Freed had engaged in state action with respect to any post on which [the plaintiff] wished to comment.”  The apparent implication here is that a citizen cannot be blocked if there is even one official post. The Court cautioned that officials who commingle personal and official posts without clear designations expose themselves to “greater potential liability” since blocking may affect both types of speech.

On remand, the Sixth Circuit will need to consider how this newly stated test fits to the facts of the case (perhaps requiring a remand back to the district court for further fact finding).

The Supreme Court also decided a second online free speech case with a quite short opinion. O’Connor-Ratcliff v. Garnier, 601 U.S. ___ (2024) 22-324_09m1.  This case involved two elected members of the Poway Unified School District Board of Trustees, Michelle O’Connor-Ratcliff and T.J. Zane, who created public Facebook pages to promote their campaigns and also to communicate with constituents about school district issues. The Board Members deleted repetitive critical comments posted by Christopher and Kimberly Garnier, parents of children in the district, and ultimately blocked the Garniers from commenting altogether.  The the Garniers then sued under §1983.

The Ninth Circuit sided with the parents, finding state action based largely on the official “appearance and content” of the Board Members’ pages, applying its own precedent that looks to whether an official “purports to or pretends to act under color of law.”

The Supreme Court granted certiorari and, in a per curiam opinion, vacated and remanded for further proceedings consistent with the two-pronged actual authority and purported exercise test articulated in Lindke, underscoring that the “appearance and content” approach taken by the Ninth Circuit diverged from the proper state action inquiry for public officials’ social media activity.