In Brief:  US Supreme Court determines when a governmental official cannot bar free speech on social media. 

Here’s What Happened:  

James Freed, like countless other Americans, created a private Facebook profile sometime before 2008. He eventually converted his profile to a public “page,” meaning that anyone could see and comment on his posts. In 2014, James updated his Facebook page to reflect that he was appointed city manager of Port Huron, Michigan. He posted frequently about his personal life and about his job, including highlighting communications from other city officials and soliciting feedback from the public on issues of concern. James often responded to comments on his posts, including those left by city residents with inquiries about community matters. He occasionally deleted comments that he considered “derogatory” or “stupid.”

After the COVID–19 pandemic began, James posted about it. Some posts were personal, and some contained information related to his job. Facebook user, Kevin Lindke, commented on some of James’ posts, unequivocally expressing his displeasure with the city's approach to the pandemic. Initially, James deleted Kevin's comments. Then James blocked Kevin from commenting at all.

Kevin sued James under 42 U.S.C. § 1983, alleging that James violated his First Amendment rights.   The District Court determined that because James managed his Facebook page in his private capacity, and because only state action can give rise to liability under § 1983, Kevin's claim failed. The Sixth Circuit affirmed.

On appeal, the US Supreme Court reversed.

The key question under §1983 was whether deleting Kevin’s posts and blocking him from James’ Facebook page were “state action”—acts that could be ascribed to James’ capacity as a governmental official or as an individual.

The Supreme Court looked at two primary factors. First, a government official’s social media posts can only be “state actions” if the official has authority (under written law or “longstanding custom”) to make official statements about the subject of the post. Second, state action exists only where an official purports to exercise his or her authority when speaking or posting on social media.

James merged his personal social media with his official duties as a governmental official. So the distinction between personal and state action was murky. James didn’t mark his Facebook page as his personal page. If he had, he would be entitled to a heavy presumption that all of his posts were personal. The ambiguity surrounding James’ page required a fact-specific undertaking in which the content and function of the posts are the most important considerations. A post that expressly invokes state authority to make an announcement not available elsewhere is official. A post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, a plaintiff must show that the official purports to exercise state authority in specific posts. 

The state-action doctrine requires Kevin to show that James: (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, the Supreme Court vacated its judgment and remanded the case for further proceedings consistent with this opinion.

Why You Should Know This: First Amendment Free Speech on social media is a hot topic. The right exists against unreasonable government restrictions on speech. So individuals and private companies can limit speech on social media without running afoul of section 1983. There was no bright line between James acting in his official capacity and personally on his Facebook page. As the plaintiff, Kevin has the burden of proof to show that James was acting in his official capacity when he deleted Kevin’s posts and then blocked up.

Case Information: Lindke v. Freed, --- US ---, WL 1120880 (U.S. Mar. 15, 2024)

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