There are about 20 million state and local government employees across the United States. Many of them use social media for personal reasons or for official communications. It’s when governors, mayors, police chiefs, teachers, and K-12 superintendents, among others, use their accounts for both personal and official reasons that legal issues can arise.
In an era where these public officials can just as easily share a photo of their family dog as they can an update about an official government proceeding, the distinction between private conduct and state action can become blurred. That distinction is especially important when government officials block people from posting or deleting comments from their hybrid personal-official accounts. Courts have disagreed about whether such conduct violates the First Amendment.
This past Friday, the U.S. Supreme Court weighed in on this issue when it adopted a new test to determine when a public official’s use of social media can lead to a First Amendment violation. The new standards set by the court help clarify what types of posts may qualify as state action and, as a result, lead to a potential constitutional violation.
The court’s unanimous opinion establishes that public officials’ accounts need to meet two criteria to be considered state action. First, the official must have the authority to speak on the state’s behalf. Second, the official must have purported to exercise that authority while posting on social media.
Here’s a look at the background of the case in question and key takeaways for public officials who use social media.
A City Official is Sued for Blocking an Individual From Facebook
In Lindke v. Freed, the Supreme Court examined a case brought by a Facebook user against a city manager. James Freed deleted Kevin Lindke’s comments that voiced displeasure with the city’s approach to the COVID-19 pandemic. Freed ultimately blocked Lindke from commenting at all on his page.
Freed’s Facebook page described how he was a father, husband, and city manager. He created the page before his appointment to city manager and managed the page in a private capacity. Although he posted mostly about his personal life, Freed began posting information related to his job. For example, he described activities such as visiting high schools, highlighted communications from other city officials like a press release from the fire chief, and solicited feedback from the public with a link to a city survey about housing and encouraged people to complete it.
When Lindke was blocked, he claimed his First Amendment rights were violated because he saw Freed’s page as a public forum.
Just because Freed was a state employee does not automatically mean his social media page should be treated as a public forum subject to First Amendment claims, the Supreme Court found. "The distinction between private conduct and state action," the court’s opinion states, "turns on substance, not labels."
When Does a Public Official’s Social Media Use Constitute a State Action
Private conduct, no matter how official it looks, cannot subject a public official to liability under the First Amendment. State action, in contrast, may be subject to a First Amendment claim.
The Supreme Court held that a public official’s use of social media constitutes a state action only if the official possessed actual authority to speak on the state’s behalf and purported to exercise that authority when he spoke on social media.
A public official has actual authority to speak on the state’s behalf when authorized to do so by law like an ordinance or statute. Even absent written law, longstanding custom to speak for the state may establish that the authority exists. For example, if prior city managers have spoken on the city’s behalf and have been recognized to possess that authority, then the current city manager would be authorized to speak for the city.
The authority to speak on behalf of the state must also extend to the type of speech that caused the alleged deprivation of rights. If, for instance, the city manager deleted comments about health code violations, but public health is not in the purview of the city manager, then the city manager lacks authority.
For social media activity to constitute state action, a public official must not only have state authority, he must also purport to use it. Generally, an official purports to speak on the government’s behalf while speaking in their official capacity or in furtherance of their official responsibilities.
Key Takeaways for Public Officials
There are still many unanswered questions regarding the Supreme Court’s new test on social media accounts. But public officials can take several steps to avoid liability going forward.
For one, when accounts are labeled with some version of "this is the personal page of John Smith" or a disclaimer that "the views expressed are strictly my own," the official can be presumed to be posting in a personal capacity. The Supreme Court made clear, however, that presumption is rebuttable.
On the other hand, when a social media account is an authorized government account or is passed down to whomever occupies a particular office, that social media account purports to speak for the government.
When it comes to the public interacting with one of their posts, public officials should avoid blocking commenters when they use their accounts to make official announcements.
There is an argument that public officers could disable the comment feature on their social media pages for all users to avoid a First Amendment violation. However, neither the Supreme Court nor a majority of circuit courts have endorsed this conduct as constitutional. And so, public officers must proceed with caution when taking this approach.
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