In its recent opinion in Lindke v. Freed, the U.S. Supreme Court addressed when public officials may be held liable for violating the First Amendment for silencing critics on social media. The Court held that a public official violates the First Amendment for blocking a citizen from commenting when the official possessed actual authority to speak on the State’s behalf on a particular matter and purported to exercise that authority when speaking in the relevant social-media posts.

The Sixth Circuit previously held in Lindke that James Freed, a city manager in Port Huron, Michigan, was not acting as a government official when he blocked a city resident, and therefore was not liable for any violation. By contrast, the Ninth Circuit held in O’Connor-Ratcliff v. Garnier that two school board members violated the First Amendment by blocking parents from their social media accounts.

In a unanimous opinion authored by Justice Amy Coney Barrett, the Supreme Court resolved this circuit split, recognizing that the mere fact that a social-media page belongs to a public official is not by itself sufficient to impose liability. The Court recognized that people do not relinquish their own First Amendment rights simply by becoming public officials. Rather, the Court held, “[t]he distinction between private conduct and state action turns on substance, not labels[.]” In what the Court described as a “fact-specific undertaking,” the new test requires courts to consider the content and function of a social-media post.

The first prong of the Court’s new test asks whether the public official possessed “actual authority” rooted in law or longstanding custom to speak for the State on the particular topic. In tracing whether a public official’s social media post is connected to the State’s power or authority, courts are charged with determining whether there is a link between the public official’s “actual authority” and the complained-of conduct. As an example, the Court noted that if public health is not “within the portfolio” of a city manager and Freed posted to his social media about issues of public health, then “neither the post nor [any] deletions would be traceable to Freed’s state authority—because he had none.” In assessing what falls “within the portfolio” of a public official, the Court cautioned against relying on “excessively broad job descriptions,” emphasizing that the question is not whether something could fit within the job description, but rather whether it “is actually part of the job that the State entrusted the official to do.”

The test’s second prong considers the context in which a public official’s post was made to determine whether the post was being made in a “public” or “personal” capacity. A post’s express invocation of state authority, for instance, would clearly fall along the “public” side of the spectrum, but a post that “merely repeats or shares otherwise available information” would more than likely be treated as “personal.” Because these considerations are post-specific, the Court noted that while deleting comments may allow an official to only target personal posts, blocking a user from accessing the page entirely could also prevent them from commenting on official posts, thereby exposing the public official to potential liability. The Court also emphasized that the use of disclaimers on the social-media account itself could create a “heavy (though not irrebuttable) presumption” that all posts made by the account are “personal.”

The Court vacated and remanded both Lindke and O’Connor-Ratcliff v. Garnier, ordering the circuit courts to reconsider the facts of the respective cases in line with the Court’s new test.

Social media is undoubtedly critical for the modern public official to communicate with their constituents, establish their brand, and generate public support for reelection. The Court’s ruling provides important guidance for public officials to continue to use social media without falling into the crosshairs of a Section 1983 claim. Fully expect public officials to avail themselves of the Court’s suggested disclaimers to make it plain that their posts are not official statements.

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