In Lindke v. Reed, the Supreme Court of the United States (SCOTUS) issued an opinion holding that social media activity can constitute state action for purposes of a claim under 42 U.S.C. § 1983. The Court held that “[f]or social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it.” In other words, choosing to speak on social media in furtherance of one's official responsibilities can have consequences. 

In Lindke, the petitioner commented on posts made by a city manager on what could be considered by many to be a personal social media account – Facebook. Eventually, the city manager blocked the petitioner from the social media account. The petitioner filed a lawsuit in the United States District Court pursuant to 42 U.S.C. § 1983, alleging that the city manager violated the petitioner's first amendment right to comment on the city manager's social media page. The District Court found that, because the city manager managed his social media account in his private capacity, and because only state action can give rise to liability under § 1983, the petitioner's claim failed. The Sixth Circuit affirmed. 

SCOTUS accepted review, and reversed, holding that a public official who prevents commentary on the public official's social media page engages in state action for purposes of 42 U.S.C. § 1983 if that official both (1) had actual authority to speak on the state's behalf on a particular matter and (2) purported to exercise that authority when speaking on social media. This, of course, is a fact-intensive inquiry. In Lindke, that authority was at most unclear, because the social media account in question lacked a label such as “personal” or a disclaimer of some sort (stating that the views expressed were personal and not on a public authority's behalf). Were such things present, the public official would have been “entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” The opinion noted, “Categorizing posts that appear on an ambiguous page … is a fact-specific undertaking in which the post’s content and function are the most important considerations.” 

“This decision is but the latest example of how social media interactions in the context of state or public officials continue to be made to comply with the rule of law and account for the constitutional rights of not only the speaker to “speak” but the audience to “respond” – even if the speaker would prefer otherwise. Public officials must be careful that their social media accounts, and related posts, clearly delineate when the statements made are purely personal and not meant to be on behalf of a public agency. Any ambiguity will expose the public official to potential legal action in the event that the public official chooses to “block” or prevent others from free commentary.