Attorney
Kennedy & Graven, Chartered
In a pair of decisions issued on March 15, 2024, the U.S. Supreme Court clarified the test for determining when a public official’s activities on social media constitute state action subject to First Amendment constraints.
The first decision, Lindke v. Freed, involved James Freed, the city manager of Port Huron, Michigan, who maintained a public Facebook page where he shared both personal content and information related to his job. A local resident, Kevin Lindke, posted critical comments about the city’s COVID-19 response on Freed’s Facebook page. Freed deleted Lindke’s comments and ultimately blocked him from the page. Lindke then sued Freed under 42 U.S.C. § 1983, alleging that Freed had violated his First Amendment free speech rights.
The key issue before the Court was whether Freed’s actions in operating his Facebook page constituted state action that could give rise to a First Amendment claim. In a unanimous decision authored by Justice Amy Coney Barrett, the Court held that for a public official’s social media activities to constitute state action under Section 1983, two requirements must be met: (1) the official must have possessed actual authority to speak on the particular matter on the government’s behalf, and (2) the official must have purported to exercise that authority in the relevant social media posts.
Regarding the “actual authority” requirement, the Court emphasized that the focus must be on the specific authority actually granted by the government to the official to make public pronouncements on a particular topic. Determining the scope of the official’s power requires an examination of any relevant written law or longstanding custom governing the official’s duties. While an official’s job description may be relevant to the analysis, the Court cautioned against relying on “excessively broad job descriptions” to conclude that an official is authorized to speak for a governmental entity: “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.”
Notably, the Court rejected an approach, adopted by some lower courts, that focused primarily on the appearance of a public official’s social media account. The appearance of officiality cannot override a lack of actual delegated authority from the government.
Regarding the test’s second requirement—that the public official purported to speak on behalf of the government—the Court underscored that public officials “have a choice about the capacity in which they choose to speak.” While such officials “may look like they are always on the clock, making it tempting to characterize every encounter as part of the job,” they are also private citizens with their own First Amendment rights.
For that reason, the state-action analysis must involve a fact‑intensive examination of factors like the content and function of the specific social media posts. Express invocations of authority, legally binding orders posted exclusively to the account, and use of government staff to draft a social media post could signal the official was acting in an official capacity. By contrast, merely sharing already-public information or posting for personal reasons, such as raising awareness of an issue, would likely not constitute an exercise of official authority. The Court noted that labeling a social media page as “personal” or including a disclaimer (e.g., “the views expressed are strictly my own”) would entitle an official to a “heavy (though not irrebuttable) presumption” that all posts on the page are personal.
After articulating the new test, the Court vacated the decision below and remanded the case to the U.S. Court of Appeals for the Sixth Circuit to apply the test to the facts of the case. The Court then issued an unsigned, per curiam, decision in the related case of O’Connor-Ratcliff v. Garnier, in which school board trustees were sued for blocking commenters on their official-looking social media pages. The Court similarly vacated the underlying judgment in O’Connor-Ratcliff and remanded that case to the U.S. Court of Appeals for the Ninth Circuit for reconsideration under the new approach.
For school districts, Lindke and O’Connor-Ratcliff provide an important framework for analyzing when social media use by school board members, administrators, and school district staff may trigger constitutional obligations as state action. Districts should be mindful of the specific authority granted to different positions by state law, district policy, and/or job descriptions. It may also be prudent to recommend that all employees clearly designate personal accounts as such and avoid intermingling their personal and official functions online to limit legal risks.
This article is intended to provide general information with commentary. It should not be relied on as legal advice. If required, legal advice regarding this topic should be obtained from district legal counsel.
Shannon M. Smith is an attorney with the law firm of Kennedy & Graven, Chartered. For more information, please contact her at (612) 337-9302 or ssmith@kennedy-graven.com.
© Shannon M. Smith (2024). Used by permission.
