March 21, 2024
By Kelsea Neal Nolot and Marcus Martinez
On March 15, 2024, the United States Supreme Court issued decisions in two First Amendment cases, Lindke v. Freed and Garnier v. O’Connor-Ratcliff, finding that a public official can delete comments and block users from their social media profiles without violating another user’s First Amendment rights as long as the social media profile is not used to execute official duties attributable to their governmental authority.
As we first reported last spring, the federal appellate courts have disagreed on the appropriate test to use to determine whether a public official’s act of deleting social media comments or blocking social media accounts constitutes a government action, and thereby violates critics’ First Amendment rights to free speech.
In Lindke v. Freed, the City Manager of Port Huron, Michigan, blocked a resident from his Facebook account and deleted criticisms posted to his page. The Sixth Circuit Court of Appeals held that because the City Manager operated his Facebook page privately, it was not a public forum, and the public had no right to post on it freely.
The Ninth Circuit Court of Appeals reached an opposite conclusion in Garnier v. O’Connor-Ratcliff, finding that two California school district board members violated the First Amendment when they blocked members of the public from their Facebook and Twitter accounts. The Ninth Circuit found a sufficiently close nexus between the board members’ social media activities and their governmental positions, such that their use of social media could fairly be attributable to the school district.
The Supreme Court considered both cases together and developed a test for determining whether and when a government official’s management of a private social media account may constitute official government action, subject to the First Amendment. The two-part test focuses on (1) whether the official actually has the authority to speak on the government’s behalf and (2) whether that official specifically exercises that authority when using social media platforms. Lindke v. Freed, No. 22-611, slip op. at 9 (S.Ct. 2024).
In analyzing the first part of the test, the Supreme Court noted that the mere fact that the official’s social media page looks and acts like a government-run page does not automatically transform the official’s social media activity into government action. The public official must actually have been granted the authority to speak on behalf of the government. This authority can be granted by statute, ordinance, regulation, custom, or usage. In the case of unwritten sources, customs, and usage, an official may be considered to be engaged in official social media communications when the “persistent practices of state officials” are “so permanent and well settled” that they carry “the force of law.” Ultimately, a private action can look official, but unless it stems from actual authority, it is not reasonably attributable to the government.
If it is established that the official is, in fact, authorized to speak on behalf of the government using social media, the second part of the test requires a determination as to whether that authority was exercised. This part is satisfied when the official uses a social media platform to fulfill their duties or responsibilities. Notably, when a public official uses social media to merely repeat or share information available elsewhere, such as reposting the agenda of a meeting or linking to a city webpage, they do not use social media in furtherance of their official responsibilities; instead, they speak in their own voice.
The Court noted that discerning whether social media activity constitutes official government action is fact-specific. For example, if a public official uses municipal staff to make a post or manage a profile, a court may determine that it is a public profile. Alternatively, information shared on a social media page for personal reasons, such as personal photos or promotion of their own political campaign, may contribute to finding that it is a private profile. Significantly, the Court recognized that disclaimers such as “this is the personal page of James R. Freed” or “the views expressed are strictly my own” are entitled to a heavy presumption that a social media profile is personal in nature.
After establishing the test, the Supreme Court remanded both cases back to their respective appellate courts for further proceedings consistent with the new framework.
For more information or to review appropriate social media management for governments and government officials in the wake of these decisions, please contact any Elrod Friedman attorney.