Supreme Court Defines When Public Officials Can Block Social Media Followers

A unanimous Supreme Court has established a test for determining when a public official's use of social media accounts constitutes state action.

In Lindke v. Freed , James Freed, the Port Huron, Mich., city manager, blocked Kevin Lindke from his Facebook account and deleted his critical comments. Freed created his Facebook account as a college student and maintained it over the years as his personal account. Before he was hired as a city manager, he converted his personal Facebook account to a public figure page, which meant that anyone on his page could read his posts and comment on them. He posted family pictures and events as well as his news releases and other information as city manager.

Lindke began posting critical comments about Freed on Freed's public Facebook page. Freed deleted the comments and eventually blocked Lindke from his page.

Lindke filed suit under a section of the U.S. Code referring to deprivation of rights (42 U.S.C. § 1983). He alleged that Freed's deletion of his comments and subsequent blocking constituted state action and violated his First Amendment rights. Lindke claimed Freed had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. Freed argued there was no state action under Section 1983 and that his posts were made as a private citizen. He further pointed to the case of Garcetti v. Caballos (547 U.S. 410; 2006), which held that public officials have the right to speak on matters of public concern without triggering Section 1983. The district court and the 6th U.S. Circuit Court of Appeals agreed with Freed.

The case turned on whether the Supreme Court believed Freed was acting as a private individual or in a public capacity as the city manager. The court also recognized that categorizing conduct can be tricky because many state and local government employees and elected officials have social media accounts that they use for both personal and professional purposes, "and the line between the two is often blurred." The court noted that in a case where a public official interacts regularly with the public, "[s]uch officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job…[but] they are also private citizens with their own constitutional rights." The court reasoned that if Freed blocked Lindke and deleted his comments as a private citizen, not a public official, then he did not violate Lindke's First Amendment rights, but was availing himself of his own.

Two-Part Test

The court then held that a public official's social media actions are to be considered state action under Section 1983 if the official had actual authority to speak on the state's behalf and purported to exercise that authority when speaking in the relevant social media posts. The critical element is the first part: possessing actual state authority. The court pointed out that just because Freed's page looked like an official platform for city business did not mean that he had the authority to speak on the city's behalf. Once the first part of the test is met, it must be determined whether the public official was acting in an official capacity.

The court concluded that Freed's was a "mixed-use" page and that additional fact-finding was needed to determine whether it was a public or personal page . It sent the case back to the lower courts to figure that out. The court also remanded the 9th Circuit case O'Connor-Ratcliff v. Garnier, which involved a similar Section 1983 challenge, so that this new test could be applied to that case.

Susan Frederick is NCSL's senior federal affairs counsel.