On March 15, 2024, the Supreme Court of the United States issued decisions in Lindke v. Freed and Garnier v. O’Connor-Ratcliff, two cases which involved when public officials can block social media followers and delete their comments.

The Lindke v. Freed case involved a City Manager (Freed) who deleted certain Facebook comments and then blocked Lindke, a critic of the city, who made comments on Freed’s Facebook page. Freed operated the Facebook page himself and used it to post “prolifically (and primarily)” about his personal life despite sometimes making posts about his City Manager job. After Freed blocked him, Lindke sued, claiming Freed’s Facebook page was a public forum and, as such, Freed violated Lindke’s First Amendment rights by removing his comments and then blocking him.

In a unanimous decision written by Justice Amy Coney Barrett, the Supreme Court recognized that the First Amendment only binds the government, not private citizens, but acknowledged that “sometimes…the line between private conduct and state action is difficult to draw.” The case addressed whether Freed engaged in state action or functioned as a private citizen when he posted on his Facebook page. The Court noted that resolution of that question “demanded a fact-intensive inquiry,” which focused on whether, in making the posts, Freed had “actual authority” to speak for the State.  Justice Barrett wrote, “For social-media activity to constitute state action, an official must not only have state authority – he must also purport to use it.”

Because Freed’s use of Facebook was deemed a “mixed use” – “a place where he made some posts in his personal capacity and others in his capacity as city manager” – it would be necessary for Lindke to show state action on the part of Freed, i.e., that Freed (1) had actual authority to speak on behalf of the State on a particular issue, and (2) purported to exercise that authority when he spoke on social media. The Court remanded the matter to the back to the Sixth Circuit for further proceedings.

In the Garnier case (discussed in the December 9, 2022 Trending Law Blog post), the Supreme Court vacated the decision of the Ninth Circuit there and remanded the matter for further proceedings consisted with the Supreme Court’s Lindke decision.

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