Public officials and employees who frequently use personal social media accounts to discuss public issues should proceed with caution as the Pennsylvania Commonwealth Court held in Penncrest School v. Cagle that such posts may be public record if the public official communicates on behalf of the agency. The Cagle court relied heavily on federal civil rights law to establish a test for determining if a public official acted in a personal or official capacity while using social media.
The Pennsylvania Supreme Court is poised to review the Cagle decision later this year. In the meantime, the United States Supreme Court affirmed in Lindke v. Freed that government agencies may be liable for a public official’s social media use in limited circumstances. Due to the Commonwealth Court’s reliance on federal civil rights law, the Lindke decision will likely influence how the Pennsylvania Supreme Court ultimately decides the Cagle appeal.
In Lindke, the U.S. Supreme Court ruled that a government agency has civil liability when a public employee censors or blocks an individual on social media if the public employee:
- Possessed actual authority to speak on the agency’s behalf on a particular matter, and
- Purported to exercise that authority when speaking in the relevant social media posts.
In Lindke, a city manager for Port Huron, Michigan, James Freed, used a privately created Facebook page to discuss personal matters (child photos, Bible verses, home improvements) as well as public matters (leaf pickup schedules, housing polls, COVID-19 statistics). Many people commented on Freed’s posts, and he replied to some, deleted others he thought were “derogatory” or “stupid,” and eventually blocked city resident Kevin Lindke from commenting on his personal Facebook page.
Lindke sued, arguing that Freed created a public forum on Facebook and violated Lindke’s constitutional rights by blocking him from participating in political conversations. The district court granted summary judgment in Freed’s favor, and the Sixth Circuit affirmed, both finding that Freed used Facebook in a personal capacity, even when discussing public issues. However, the U.S. Supreme Court reversed and remanded to apply the two-part test outlined above.
Justice Barrett, writing for a unanimous court, offered useful insights not only in determining civil liability but also if a public official’s personal social media constitutes a public record. She noted that public officials have a counter-vailing First Amendment right to voice their personal opinions on matters of public concern. The fact that Freed used his social media as an outlet for city updates and to respond to citizen concerns did not mean that the city had authorized Freed to do so.
In civil rights cases, plaintiffs must establish that the city authorized the official to communicate with citizens on that topic. However, the court warned this does not require showing that a statute or ordinance expressly grants such authority and that such authority may be derived from a long-standing custom. For example, if a city manager routinely briefs the press on behalf of the city, the court may recognize the city manager as an official spokesperson even if no ordinance or job description expressly grants such authority.
If a social media page carries a disclaimer (e.g., “the views expressed are strictly my own”), the public official is entitled to a heavy presumption that all posts are personal. On the other hand, if an account belongs to a government agency or is passed down to a particular office, it is presumed that the speech is official.
When a social media page is “mixed use” with both personal and public posts, the reviewing court must undertake a fact-specific analysis for each deleted comment. Justice Barrett warned: “A public official who fails to keep personal posts in a clearly designated personal account … exposes himself to greater potential liability.”
Turning to Pennsylvania’s Right-to-Know Law, a “record” is defined as “information… that documents a transaction or activity of an agency and that is created, received or retained pursuant to law or in connection with a transaction, business or activity of the agency.” Based on the pre-Lindke case law, Cagle established a three-part test to determine when a social media post reflects official activity. Assuming the Pennsylvania Supreme Court affirms Cagle, modified to reflect the two-part Lindke test, the following factors will be relevant.
If a public official uses a personal social media account to discuss matters of public concern, the requester will bear an initial burden to show that the public official had authority to speak on the agency’s behalf on that specific topic and that the public official purported to exercise such authority. This may be established by showing an express statute, ordinance or other writing, such as a job description, or that the public official customarily spoke on the agency’s behalf.
Transparency advocates will likely assert that the Lindke test is not a good fit to determine if social media posts by Pennsylvania public officials are public records. It is difficult to square Lindke’s official capacity test, which requires a showing that the public official had actual authority to speak on an agency’s behalf, with the Pennsylvania Sunshine Act, which requires deliberations by individual public officials to take place at a public meeting, even though such deliberations reflect individual viewpoints rather than the official position of the agency.
These issues will be fleshed out by the Pennsylvania Supreme Court in Cagle later this year. For the time being, public officials in Pennsylvania should take the following steps to avoid personal acts being misconstrued as public acts.
- Public officials may use a disclaimer on social media to clarify that they are merely expressing a personal opinion.
- Public officials should maintain “official” accounts, separate from personal accounts, to avoid exposing personal communications to public disclosure.
- Agencies should review and update social media policies to clarify official from personal communications.
