Expression of free speech or suppression of speech? The Supreme Court establishes a two-prong test for drawing the line between state action and private action by government officials moderating social media content.

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Part 8 of the series “The Last Frontier facing the New Frontier.”

Lea Filippi, Sedor, Wendlandt, Evans & Filippi, LLC

In November, my colleague Clint Campion wrote a column for this very publication discussing development of the law regarding use of personal social media accounts by public officials. He predicted that the United States Supreme Court would have to address the question of when public officials speak as private citizens. The predicted day has come. On March 15, Justice Barrett delivered an opinion in Lindke v. Freed which established a two-part test for determining whether a government official who blocks users or deletes comments from social media is taking state action or exercising their own rights of free speech.

James Freed created a private Facebook account and then changed his privacy settings to public before being appointed city manager of his hometown, a job which he updated the profile on his Facebook page to reflect. After becoming city manager, Mr. Freed kept using his Facebook page primarily to post about his personal life. He also began to post information related to his job such as highlighting communication from other city officials or soliciting feedback about matters of public concern. He occasionally deleted from his page comments by other users which he considered “derogatory” or “stupid.” Mr. Lindke commented on some of Mr. Freed’s posts to express disagreement with the city’s approach to the COVID-19 pandemic. Initially Mr. Freed deleted some comments from Mr. Lindke and then he eventually blocked Mr. Lindke from posting any comments.

Mr. Lindke sued Mr. Freed, claiming that blocking him on Facebook had violated his First Amendment rights to comment on Mr. Freed’s page. Specifically, Mr. Lindke claimed that Mr. Freed had violated the federal law 42 USC §1983. This was the same type of claim that a constituent here in Alaska had brought against a state legislator who had blocked them from commenting on the legislator’s official Facebook page. The district court and circuit court of appeals both ruled in Mr. Freed’s favor, reasoning that he could not be liable for violating Mr. Lindke’s First Amendment rights because Mr. Freed had managed his Facebook page in his private capacity, not as part of his duties as city manager.

Not one to give up easily, Mr. Lindke sought further review by the United States Supreme Court. The United States Supreme Court ruling in Lindke v. Freed has clarified the rights and responsibilities of local officials with respect to moderation of social media content. A central issue is that §1983 only protects against acts attributable to the state, not those of a private person. The Court’s decision in Lindke v. Freed noted that most prior litigation over that issue had focused on whether a nominally private person had engaged in state action, whereas the claims against Mr. Freed required determining whether a government official was engaged in state action or functioned as a private citizen. That is important because if Mr. Freed was acting in his private capacity when he blocked Mr. Lindke and deleted his comments, then Mr. Freed was not violating Mr. Lindke’s First Amendment rights – he was exercising his own.

The Court established a two prong test for determining whether a public official takes public action or private action when they moderate a social media channel.

A public official’s social media activity can only constitute state action (and thus potentially subject them to liability under §1983) if the official has actual authority to speak on the state’s behalf. Reasoning that to misuse power, one must have it in the first place, the Court ruled that alleged censorship can only be actionable if connected to speech on a matter within the official’s bailiwick. Applying this first prong of the test requires examination of potential sources of power, such as statute, ordinance, regulation, custom or usage” to determine not whether making official announcements could fit within an official’s job description, but rather whether making such announcements is actually part of the official’s job.

For social-media content moderation to constitute state action, the official must not only have state authority but also purport to use it. The Court explained that if a government official’s social media account carried a label (such as “this is the personal page of Mr. Freed”) that would create a strong presumption that the posts on that page are personal. Because Mr. Freed’s account had no label declaring it either personal or official, determining whether he could have potential liability required fact-specific analysis which could be down to the level of individual posts. For example, a post which expressly invoked state authority to announce information not available elsewhere could appropriately be official. On the other hand, a post that merely repeated or shared otherwise available information would be more likely to be personal. The functionality of a particular social media platform is relevant to the analysis. Because Facebook blocking operates on a page-wide basis litigation of claims by a person who had been blocked on that platform could require consideration of whether the official had engaged in state action with respect to any post on which their constituent wished to comment.

For public officials, Lindke v. Freed demonstrates the importance of being clear which hat you are wearing whenever you use social media.

Practice Pointers

  1. School districts should consider adopting a social media policy that defines and governs official social media accounts, including rules for who is the administrator of such accounts.
  2. School officials who maintain private social media accounts that they want to use to exercise their own First Amendment rights should consider labeling such accounts as private accounts.
  3. School officials should refrain from using private social media accounts to make official announcements to disseminate information not available from other sources.  

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