U.S. Supreme Court creates legal test for social media posts by public officials

On Board Online • April 8, 2024

By Shubh N. McTague
Staff Counsel

The Free Speech clause of the First Amendment prohibits governmental curtailment of speech. This can lead to litigation when citizens feel that school board members or other public officials have blocked them unlawfully from commenting on their social media posts. The key question is: when is a public official's posting on a social media account considered official speech, giving others a First Amendment right to comment?

In two recent U.S. Supreme Court cases, a unanimous court provided a test to determine whether a public official engages in state action when posting about job-related topics on social media. Lindke v. Freed concerned the Facebook page of a city manager in Michigan, and O'Connor-Ratcliff v. Garnier concerned the Facebook pages of two school board members in California.

Facts of the city manager case

In Lindke v. Freed, James Freed created a Facebook page when he was in college and eventually opened it to the public. Approximately six years later, he became the city manager of Port Huron, Michigan. At that point, he posted a profile picture on Facebook of himself in a suit with a city lapel pin. He also included his title, a link to the city's website, and the city's email address on his page. While Freed operated the page himself and mainly posted pictures of his family and home life, he also posted information related to his job and other news about the city. He would converse with those that left comments on his posts.

After the COVID-19 pandemic began, Freed posted information both personal and related to his job concerning the pandemic. Kevin Lindke, a community member, was unhappy with the city's response to the pandemic and started posting comments to Freed's posts. At first, Freed deleted Lindke's comments but ultimately blocked Lindke from his page. Lindke filed a lawsuit claiming that Freed violated his First Amendment rights.

Facts of the case involving school board members

In O'Connor-Ratcliff v. Garnier, two school board members in the Poway (Calif.) Unified School District created public Facebook pages to promote their campaigns. After they won, they used those pages to post information related to the school district (e.g., what happened at school board meetings, public safety updates and local budget plans). They also used Facebook to dialogue with community members. The pages described the two as "Government Official[s]" and stated their official positions. One of the members also created a Twitter page to use in the same manner. These two board members, Michelle O'Connor-Ratcliff and T.J. Zane, kept separate personal Facebook pages that they shared with friends and family.

Christopher and Kimberly Garnier were a couple with children in the district. They began posting lengthy and repetitive comments on the board members' public pages. The board members first deleted the comments but then blocked the couple from being able to make any comments. The Garniers alleged a violation of their First Amendment rights.

When does a public official's social media activity constitute "state action" under federal law?

Pursuant to 42 U.S.C. section 1983, an individual can bring a cause of action against a "person, who, under color of any statute, ordinance, regulation, custom, or usage, of any State deprives someone of a federal constitutional or statutory right."

The U.S. Supreme Court focused on the Lindke case to set forth a test to determine whether "a public official's social-media activity constitutes state action under [section] 1983[.]"

The court held that to be able to attribute an official's social media activity to the government, the official has to:

• Possess actual authority to speak on the government's behalf; and
• Purport to exercise that authority when speaking on social media.

The court noted the difficulty in analyzing whether a public official engaged in state action or functioned as a private citizen when dealing with social media because these individuals still retain their constitutional rights as private citizens. Thus, each circumstance requires a fact-specific determination.

Part 1 of the test: Possession of actual authority to speak on the state's behalf

The Supreme Court considered how to determine whether a public official using social media has actual authority to speak on behalf of the government, which must be established prior to evaluating the second prong of the test.

Lindke argued that Freed's social media posts constituted state action because his page looked and functioned like an outlet for city updates and citizen concerns. However, the unanimous opinion written by Justice Amy Coney Barrett stated that Freed's postings could not be considered to be speech on behalf of the city government "unless he was 'possessed of state authority' to post city updates and register citizen concerns."

The court stated that an individual claiming a First Amendment violation must establish more than a state official having "some" authority to communicate with residents. The alleged censorship must be connected to speech on a matter which is within the official's duties. For example, the court noted that if Freed posted on a topic totally unrelated to his job, such as health code violations at restaurants, but then deleted comments on that post, it would not be connected to any authority he had within his job duties.

If, however, a local law allowed Freed to make official announcements on certain topics, or it was a long-standing custom, then it would be indicative of the authority to speak on the city government's behalf when posting on social media. The court stated that the "inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the state entrusted the official to do."

Part 2 of the test: Purports to exercise that authority when speaking on social media

For a public official's speech to be considered government speech, an official must not only have actual authority to speak on the matter, but also purport to use it when speaking on social media. This generally means the official was speaking on behalf of the government while in his/her official capacity, or when the official's speech is used to fulfill his/her responsibilities pursuant to state law.

In an example not involving social media, the court noted that if a school board president made an announcement during a school board meeting that the pandemic-era restrictions were being lifted and later makes the same announcement during a backyard barbeque with friends and family, the president would only be acting in his/her official capacity during the board meeting.

The court stated that Freed's situation was not entirely clear. Freed's Facebook page did not explicitly state that it was his personal page nor did it have a disclaimer stating the views expressed were strictly his own. If the page had either, the official "would be entitled to a heavy (though not irrebuttable) presumption that all of the posts [on the] page were personal."

The court noted that Freed's postings on Facebook were a hybrid; some were personal and some were related to city business. The decision stated for posts that appear on an ambiguous page, the content and function of a social media posting are the most important factors for consideration. For instance, if a mayor posted on social media that pursuant to a local ordinance, he/she was suspending parking rules, then the mayor would be purporting to discharge his/her official duties. If instead the mayor was just repeating or sharing information available elsewhere, then it would be more likely that the post would constitute private speech. Thus, it cannot be assumed that just because an official posts government-related information that the official is purporting to exercise his/her governmental authority.

Deleting comments v. blocking individuals

Finally, the court noted the difference between when an official deletes comments by an individual or blocks them altogether. If a legal claim involves comments that were deleted, then just the posts from which the deletions occurred would have to be examined to determine whether the deletions pass the two tests. However, if an individual is blocked from the entire social media page, then "a court would have to examine whether [the official] had engaged in state action with respect to any post on which [an individual] wished to comment." The court noted that a public official exposes himself/herself to greater potential liability if he/she "fails to keep personal posts in a clearly designated personal account."

As a result of this new test, the court remanded both the Lindke and O'Connor-Radcliffe cases back to the federal appellate courts from which they were appealed. Those courts will determine whether the plaintiff's First Amendment rights were violated or not.