When Can Public Sector Employees Restrict Speech on Social Media? Supreme Court Weighs In

Clark Hill PLC

James Freed, like millions of other Americans, maintained a private Facebook page where he posted updates about his personal life. After he became the City Manager for Port Huron, Michigan, Freed would occasionally post updates about various city issues. Kevin Lindke, a Port Huron resident, took exception to how the city was managing the COVID-19 pandemic and let Freed know by commenting on Freed’s Facebook posts. Freed deleted and blocked Lindke’s comments. Lindke then sued Freed in federal court alleging that Freed violated Lindke’s First Amendment rights. Despite Lindke losing both at the trial court and the Sixth Circuit Court of Appeals, the Supreme Court decided to review this case to resolve a split amongst the various appellate courts over what test to apply to determine when a public official or employee is engaged in state action thus triggering Constitutional prohibitions on their conduct.

In Lindke v. Freed, 601 U.S. ___ (2024), the Supreme Court unanimously held that a government official’s social media conduct can be attributed to the government only if the official both “(1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”

Both factors of the test are fact-specific. To satisfy the first factor, a plaintiff must show that the official/employee actually held the authority (either by law or ingrained custom) to speak on the government’s behalf on a particular topic. It is not enough for a plaintiff to claim that it was theoretically possible for the public official to speak on behalf of the government based on a broad job description or that the public official had the appearance of acting on behalf of the government.

As for the second factor, a plaintiff must show that the official/employee was using the authority to speak on the state’s behalf rather than as a private citizen. This involves judicial review of the specific post’s content and functions, which the Supreme Court described as “the most important considerations” under the second factor.

The Supreme Court also suggested that using disclaimers – like labeling the page as “personal” or stating that the “views expressed are strictly my own” – would entitle the public official to a “heavy (though not irrebuttable) presumption” that all posts are personal. Finally, the Supreme Court also noted that officials who block users entirely from their mixed-use pages risk liability because in those instances, the member of the public is blocked from viewing even official posts.

While the Supreme Court’s decision in Lindke makes it more difficult for members of the public to establish a First Amendment violation if a public official blocks their access to a personal social media page (or deletes a comment), public officials and employees would be wise to maintain two separate social media accounts with one clearly designated for their public/official life and one clearly designated for their personal life.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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