In a unanimous decision issued on March 15, 2024, the United States Supreme Court determined whether a public official may block the public from the official’s personal non-governmental social media accounts. In the decision, the Court enunciated a two-part test to establish when the public official’s account is so enmeshed with the business of government, that the action of blocking a member of the public becomes a restraint of speech by the government.
In Lindke v. Freed, a city manager, Freed, maintained a public Facebook account that was personal to him and not an official government Facebook account. His page indicated he was a husband, a father and the City Manager of the City of Port Huron in Michigan. He posted announcements about personal and family events, but also, things related to City government. Freed would respond to comments related to his City government postings on this page and delete comments he found “stupid.” Plaintiff Lindke commented on Freed’s posts regarding the City’s handling of COVID-19; initially, Freed deleted Lindke’s comments, but eventually blocked him altogether. Lindke sued, claiming that his First Amendment rights had been violated when Freed, a public official, blocked his ability to communicate with the City about its policies.
The Supreme Court found that a public official who prevents a member of the public from commenting on the official’s social media account violates the law if the official “(1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social media posts.” Pursuant to this test, the Court found that Freed had not engaged in State speech when he blocked Lindke, as Lindke did not demonstrate that Freed was speaking on behalf of the City when he made his initial posts about the municipality’s COVID policies, and therefore, his limiting Lindke’s speech was a private action.
The Court recognized that Lindke needed to demonstrate that Freed was a public employee who had some authority to communicate on City matters. In deciding that Lindke did not meet this burden, the Supreme Court wrote, “[t]he threshold inquiry to establish state action is not whether making official announcements could fit withing a job description but whether making such announcement is actually part of the job that the State entrusted the official to do.”
In writing the opinion of the Court, Justice Amy Coney Barrett acknowledged that, given Freed’s co-mingling of personal and official posts on a page that was not labeled as being for his private or public use, whether Freed’s action was part of his duties was a fact specific one. “Here, if Freed’s account had carried a label – e.g., ‘this is the personal page of James R. Freed – he would be entitled to a heavy presumption that all of his posts were personal, but Freed’s page was not designated either ‘personal’ or ‘official.’ …A post that expressly invokes state authority to make an announcement not available elsewhere is official, while 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, the plaintiff must show that the official purports to exercise state authority in specific posts.” In reaching this decision and remanding the case to the District Court for application of the standards set forth in its Decision, the Court realized that the manner in which social media sites are structured must be considered. Justice Barrett noted that when Freed blocked Lindke on Facebook, he blocked Lindke from the entire page, not just particular posts on the page. As a result, the court adjudicating the lawsuit needs to consider whether Freed “engaged in state action with respect to any post on which Lindke wished to comment.”
Takeaways for Public Officers
The Court provided guidance to public officers who use social media which is important to follow to minimize the likelihood that an individual’s actions violate protected First Amendment rights. First, it is imperative that public officials, whether elected, appointed, or hired as employees, maintain clearly labeled, separate social media accounts for personal use and official use. Second, when posting or maintaining an official governmental social media account, consider limiting posts to republicizing news, events, and actions, as opposed to original posts about municipal or political matters. The Court’s decision indicated that when an officer reposts, it is less likely that it will be found that the official was vested with the authority to “speak” on behalf of the municipality. Third, on an official account, public comments may be deleted if they do not meet standards in terms of usage (e.g., deletion of repetitive comments by the same individual or removing comments that use derogatory language), but blocking the individual from being able to comment could be seen as an illegal restraint of speech. Therefore, a public official can engage in culling comments in a consistent content neutral manner, but should not limit an individual’s ability to post. Fourth, the municipality should consider a policy designating public social media accounts or feeds to clarify who has the authority to speak for the government.
If you have any questions about this decision or need assistance in developing or revising a policy or regulations related to this topic, please contact any of Keane & Beane, P.C.’s Municipal, Labor Relations & Employment Law or Education Law attorneys.
