May/June 2024 Issue

Also in this issue: DOL Issues Final Overtime Rule     |     Court of Appeals Clarifies Scope of Arrest Record Protections     |     Broader Array of Conduct Now Qualifies as Employment Discrimination

Lindke v. Freed: When Does an Official’s Use of Social Media Become State Action?

Liz Leonard | 05.22.24

Over the years, social media has become a common component of public service, keeping officials connected both formally and informally to the public they serve. As more official business is being conducted on social media platforms like Facebook, Instagram, and X (formerly Twitter), issues regarding content moderation — particularly a user’s act of deleting an unwanted comment from a page or blocking another user — have become more prevalent. A social media user whose comments were deleted or who was blocked may attempt to sue the public official who runs that social media page for violating his right to free speech. However, only ​“state action” can give rise to liability for a First Amendment violation. Thus, the key question in these cases is whether the official’s social media use is ​“state action” or private action given the circumstances.

The United States Supreme Court recently released a unanimous opinion in Lindke v. Freed, No. 22 – 611, (U.S. Mar. 15, 2024) clarifying the standard governing whether an official’s speech on social media is ​“state action.” The Court held that an official’s social media use is ​“state action” that can give rise to First Amendment liability only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when the official spoke on social media.

Lindke v. Freed concerned the Facebook page of James Freed, the city manager of Port Huron, Michigan. Freed posted both personal and business items on his page. For example, Freed would post pictures of his family, home improvement projects, and favorite bible verses while also posting about city project kick-offs, press releases, and public comment forms. When COVID-19 hit, Freed started seeing regular comments on his Facebook page from Kevin Lindke, who was unhappy with the city’s approach to the pandemic. Freed deleted some of Lindke’s comments and eventually blocked Lindke altogether (keeping Lindke from commenting on any of Freed’s posts). Lindke then sued Freed pursuant to 42 U.S.C. § 1983 for violating Lindke’s constitutional right to free speech. The Supreme Court ultimately remanded the case back to the Sixth Circuit to apply the new two-pronged test developed in its decision.

In its opinion, the Supreme Court emphasizes that this question is complicated because public officials retain their own personal constitutional rights. For example, an official retains her right to speak as a private individual about matters of public concern even if she holds a public facing position. As such, the Supreme Court resists any broad sweeping rule and instead develops a very fact-specific two-pronged test. 

The first prong of the test asks whether the official possessed actual authority to speak or act on the State’s behalf. The Court indicates that determining the scope of an official’s power requires careful review of the relevant statute, ordinance, regulation, or customs relating to the position. The second prong of the test asks whether the official purported to exercise that authority when the official spoke on social media. This prong emphasizes that the context of the speech matters. Courts may look at whether a social media account or page appears official, whether it contains a disclaimer or description of the page as private, and whether the account is held personally or passed between those who hold a particular official position.

In light of this new standard, officials should consider taking the following steps related to their social media use:

• Maintain separate social media accounts for personal use and official business.
• Include a disclaimer on your personal social media accounts making it clear that you are speaking only for yourself and do not speak for the government entity you work for.
• Avoid posting work-related business on your personal social media accounts.
• Be careful about deleting content or blocking a user from an official social media page. Although some circumstances may justify content moderation on an official social media page (for example, if someone is making violent threats), deleting content or blocking users on an official page may open officials up to liability. It is best to consult an attorney if you are unsure of whether content moderation is appropriate in a given circumstance.