15 Mar Supreme Court Adopts New Test to Determine When “State Action” Occurs for Public Officials’ Social Media Use
Today, in Lindke v. Freed, the Supreme Court set forth the test for when local government officials are considered “state actors” for the purposes of the First Amendment when they post on social media. The case is a win for local governments as the test provided by the Supreme Court safeguards the free speech rights of elected officials while balancing the rights of their citizens. More importantly, it is objective and focuses on authority as the test to determine if the official is acting “under the color of state law.” As Justice Barrett put it in writing for the unanimous Court: “To misuse power…one must possess it in the first place.”
In this case, Mr. Freed operated a Facebook page, which he started in college in 2008. At some point, he attracted more than 5,000 friends and under Facebooks rules, he was required to convert it the account to a public a “page” which allows for unlimited followers. He was required to pick a category for the page, and he picked “public figure.” In 2014, he was appointed the city manager of Port Huron, Michigan and he added that information to his Facebook page. He listed his contact information as Port Huron’s, including linking to the city website, city email, etc. He posted primarily about personal matters including posting pictures of his family, his dog, and food he likes to eat. He would also post information about his job, including the town’s COVID-19 policies and articles on public-health measures as the pandemic continued.
Mr. Lindke was a citizen of Port Huron and unhappy with the City’s COVID policies. Mr. Lindke would post negative comments on Mr. Freed’s Facebook page and Mr. Freed initially deleted those comments, but then eventually blocked Mr. Lindke from the page.
Mr. Lindke sued, claiming blocking him from the Facebook page was “state action” for the purposes of a Section 1983 claim and that Mr. Freed had violated his First Amendment rights in doing so. Mr. Freed argued his account was strictly personal and not subject to the constraints of the First Amendment. The Sixth Circuit found in favor of Mr. Freed, concluding the proper test to determine if the government official is engaging in state action is to ask whether he was “performing an actual or apparent duty of his office or if he could not have behaved as he did without the authority of his office.” The lower courts were split on the proper test and the Ninth Circuit in a separate case involving the same question had held that state action applies to public officials’ social media accounts based on the “appearance and content” of the pages.
The Supreme Court took the case to resolve the split and provide the test to determine when the First Amendment applies to a government official’s social media account. In a unanimous decision authored by Justice Barrett, the Supreme Court rejected the Ninth Circuit’s subjective “appearance and content” test and concluded that a government official’s social media posts are “attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” The Court noted that the “appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.” The authority must be “real, not a mirage.” The analysis will hinge on substance and not the mere label of public official and the Court explains, it will require a fact-intensive inquiry.
The Court notes that the line between private and state action can be “difficult to draw.” The difficulty is magnified, the Court explains, because of the nature of some public officials’ work, which can make it seem like “they are always on the clock.” But the Court emphasized that public officials have their own First Amendment rights, including rights to speak about their employment, that they do not relinquish simply by becoming public officials. The burden is on the plaintiff to show the official is “purporting to exercise state authority in specific posts.” Additional factors, such as the use of governmental staff and resources may help demonstrate the use of that authority.
The Court explains that its test is derived from the text of Section 1983, which provides a cause of action where “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State deprives someone of a federal constitutional or statutory right.” (internal quotations omitted). Thus, a public official has the authority to speak on behalf of the government if based on a written law, regulation, or ordinance which authorizes that person to make official announcements or if there was a well-established custom such that the “power to do so has become permanent and well settled.” (internal quotations omitted). The Court notes in situations where an account belongs to the government or is passed down to the occupier of the particular office, those would be government accounts subject to the First Amendment.
The Court admonished lower courts not to rely on “excessively broad job descriptions” to conclude that authority to speak on behalf of the government exists. The question should be “whether making official announcements is actually part of the job that the State entrusted the official to do.”
The Court provided guidance and hypotheticals, which may prove instructive. It explained that in cases where someone has the authority to communicate with their residents, for state action to exist and First Amendment liability to attach, “there must be a tie between the official’s authority and the gravamen of the plaintiff’s complaint.” For example, if Mr. Freed had no authority over public health and he was posting about local restaurants with health-code violations and deleted unwanted comments on those posts, he would not be acting with any state authority and would not violate the First Amendment.
More obviously, if a mayor posts something expressly invoking the authority of the City or State, the action takes immediate legal effect, and is not otherwise available elsewhere, that post would likely be state action according to the Court. On the other hand, if the official is merely sharing information that is otherwise publicly available, it is far less likely to be state action.
Public officials may use labels and disclaimers on their social media pages such as “this is the personal page” of the individual or “the views expressed are strictly my own” which, according to the Court would entitle the official to “a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” However, the Court noted such a disclaimer cannot provide cover to conduct government business on a personal page such as by live streaming a council meeting only on that “personal” page.
Because Mr. Freed’s page did not have a disclaimer and his page was used for a variety of things including both private and those related to his job, a fact-intensive inquiry is necessary to determine if when he deleted comments or blocked Mr. Lindke, he was engaged in state action. The Court also notes that lower courts will need examine both activities that he engaged in on the social media account: deleting and blocking. The Court cautions that because blocking is a blunt instrument, when an official is using social media in a mixed way, as Mr. Freed did, there is a greater potential to expose themselves to liability as the court must analyze the entire social media page. Deleting on the other hand, is more precise and the only relevant inquiry for First Amendment purposes pertains to those posts for which the comments were deleted.
Because the test the Court issued was new, the Court vacated the judgment of the Sixth Circuit and remanded the case for consideration in light of its opinion. The Court granted certiorari in two cases involving this issue, but its decision in Lindke is the controlling decision. The other decision, O’Connor-Ratcliff v. Garnier resulted in a per curiam short decision vacating the Ninth Circuit’s judgment and remanding the case to consider in light of the new test adopted by the Court.
The Local Government Legal Center filed an amicus brief (joined by IMLA, NACo, and NLC) advocating for a clear and easy to apply state action test focused on authority. The brief, which was authored by Caroline Mackie & Robert Hagemann of Poyner Spruill also highlighted the unworkable nature of the subjectively driven appearance test and urged the Court to reject that test. And the brief argued that public officials have their own First Amendment rights, which could be squelched if the Court adopts too broad of a test.
As the Court notes, there are millions of state and local government employees in this country with a wide variety of jobs and many of them use social media and will therefore be impacted by this decision. This decision will hopefully bring them some clarity in this area.