In my prior article, I discussed Lindke v. Freed, in which a social media user brought action under § 1983 against a city manager, alleging that the manager violated the user’s First Amendment rights by deleting his comments on a social media page that the city manager operated and by blocking the Plaintiff from the page. That article reviewed the case, including the background leading to the lawsuit and the holding by the Sixth Circuit, in anticipation of the Supreme Court’s ruling. On March 15, 2024, the Supreme Court published its decision, in which it unanimously held that, in the context of social media forums, the state-action doctrine requires a Plaintiff to show that the Defendant had both (1) actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. This article will discuss the Supreme Court’s rationale and the impact of its ruling.

Substance over Style

Justice Barret, in writing for the unanimous court, conceded from the outset that “[i]n the run-of-the-mill case, state action is easy to spot . . . [s]ometimes, however, the line between private conduct and state action is difficult to draw.” A unique feature of this case is that it required the court to analyze whether a state official engaged in state action or functioned as a private citizen rather than whether a nominally private person engaged in state action for purposes of § 1983.  As Justice Barret explained, the Court has had little occasion to consider how the state-action requirement applies in such circumstances. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights. As Freed did not relinquish his First Amendment rights when he became city manager for Port Huron, Lindke could not simply “hang his hat” on Freed’s status as a state employee. So long as Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights; rather, he exercised his own.

This distinction between private conduct and state action turns on substance, rather than labels, and demands a fact-intensive inquiry.  This is especially important in the context of social media, which can be used “for personal communication, official communication, or both – and the line between the two is often blurred.” Nevertheless, relying upon precedent articulating principles that govern analogous cases, the Court held that a public official’s social media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.

The first prong of this test is grounded in the “bedrock requirement” that the conduct allegedly causing the deprivation of a federal right be “fairly attributable” to the State. “Private action – no matter how ‘official’ it looks – lacks the necessary lineage.” Like the Sixth Circuit, the Supreme Court rejected Lindke’s argument that the court should focus on the page’s appearance or function.  The Court provided that while “Lindke imagines that Freed can conjure the power of the State through his own efforts . . . the presence of state authority must be real, not a mirage.” Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron.  Instead, the alleged censorship must be connected to speech on a matter within Freed’s authority. If the plaintiff cannot make this threshold showing, then he cannot establish state action.

As to the second prong, requiring that the government official purported to exercise that authority when he spoke on social media, the Supreme Court noted that Freed’s page was neither designated as “personal” nor “official,” which raised the prospect that it was “mixed-use” – a place where he made some posts in his personal capacity and others in his capacity as city manager.  In such situations, a reviewing court must categorize posts based on their content and function. Where there remains doubt about a given, additional factors might cast light – “for example, an official who uses government staff to make a post will be hard-pressed to deny that he was conducting government business.” Regardless, the Court emphasized that “[l]est any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” The Court concluded by providing that, to the extent that the test the Supreme Court relied upon differs from the one applied by the Sixth Circuit, the Supreme Court vacated the appellate court’s judgment and remanded the case for further proceedings consistent with the Supreme Court’s opinion.

Takeaway

Within this decision, the Supreme Court not only provided a clear two-prong test with regard to § 1983 actions in the social media context but also provided additional guidance for government officials moving forward.  First, a label (e.g., “this is the personal page of . . . ”) or disclaimer (e.g., “the views expressed are strictly my own”) can serve to give a social media page a clear context, lending to a heavy (albeit not irrebuttable) presumption that all the posts thereon were personal.  Second, the Court noted that the nature of the technology determines the scope of state-action analysis. In this case, Freed performed two actions to which Lindke objected: the deletion of comments and blocking from commenting.  With regards to the deletion of specific comments, the only relevant posts are those from which the comments were removed. Conversely, given that blocking someone would operate on a page-wide basis, a court would have to consider whether a governmental official engaged in state action with respect to any post on which a plaintiff wished to comment. This only furthers the notion that the state-action doctrine demands a fact-intensive inquiry.  The Court concludes its decision with a word of caution – “[a] public official who fails to keep personal posts in a clearly designated personal account . . . exposes himself to greater potential liability.” To be safe, Government officials would do well to heed the Supreme Court’s warning.