Public officials should proceed with caution when using social media. The United States Supreme Court, in a recent unanimous decision, articulated a two-part test to determine when a public official’s social media account could give rise to a First Amendment claim for prior restraint on speech or expression by the government.

In Lindke v. Freed, James Freed, the city manager of Port Huron, Mich., maintained a private and personal Facebook that he later converted to a public Facebook page after reaching Facebook’s 5,000 friend limit. By converting his page to public, anyone could see and comment on his posts. Freed’s profile photo was a picture of himself in a suit, in his “About” section Freed included his title of “City Manager” and a link to the city’s website. Freed further described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.”

Before and after converting his Facebook to public, Freed operated his Facebook page himself, and the majority of his posts revolved around his personal life, which included uploading hundreds of pictures of his family and other non-work-related posts. Freed sometimes posted information related to his job as city manager, such as visiting local schools, and occasionally Freed solicited feedback from the public. Freed’s followers, including city residents, frequently commented on his posts, sometimes with questions that Freed often replied to. During COVID, Freed posted both personal (e.g., pictures of his family with the caption “stay safe”) and governmental information (e.g., case counts and hospitalization numbers). Some of Freed’s posts also related to his public office, such as a description of the city’s hiring freeze.

Plaintiff Kevin Lindke was a follower of Freed’s Facebook page and a city resident of Port Huron. Lindke was unhappy with the city’s response and approach to the pandemic and posted his viewpoints on Freed’s page. Freed initially deleted Lindke’s comments and ultimately blocked him. As a result, Lindke was able to view Freed’s posts, but was unable to comment on them. Lindke ultimately sued Freed for prior restraint under 42 U.S.C §1983, alleging Freed had violated his First Amendment rights when he blocked Lindke’s ability to communicate with the city about its policies.

Lower Courts Examine Government Authority and Context

The Eastern District of Michigan granted summary judgment to Freed, holding that Freed’s posts were of a personal quality and there was an absence of “government involvement.” Lindke appealed to the Sixth Circuit, which affirmed the District Court’s decision. The Sixth Circuit concluded Freed’s conduct was not attributable to the state and, in reaching its decision, focused on “whether the official is performing an actual or apparent duty of his office or if he could have behaved as he did without the authority of his office.” Specifically, to determine whether Freed’s conduct was fairly attributable to the state, the Sixth Circuit asked whether state law required Freed to maintain a social-media account or whether the social-media account utilized state resources, such as government staff, to run the account.

The Sixth Circuit’s approach to state action in the social-media context differs from that of the Second1 and Ninth Circuits2 , which focus more on whether the account’s appearance and content look official and less on the connection between the official’s authority and the social media account. Ultimately, Lindke’s case made its way to the United States Supreme Court.

Supreme Court Spells Out Two-Part Test for Social Media Accounts

The Supreme Court noted that public officials are not always “on the clock” and the state-action doctrine applicable to prior restraint cases avoids such broad assumptions. While public officials can act on behalf of the state, they are also entitled to constitutional protections as private citizens. Moreover, the First Amendment “protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern” provided that the speech is not itself “ordinarily within the scope of [the] employee’s duties.” Thus, the Supreme Court stated, if Freed was acting in his private capacity rather than as a public official, he did not violate Lindke’s First Amendment rights, but rather exercised his own.

The Supreme Court held that a public official’s social media activity constitutes state action in violation of the First Amendment only if the official (1) possesses actual authority to speak on the state’s behalf, and (2) purports to exercise that authority when speaking on social media. A public official possesses actual authority to speak on the state’s behalf when the conduct depriving a federal right is fairly attributable to the state. In other words, the conduct must be traceable to the state’s power or authority.

It was not enough for Lindke to show that Freed had some authority to act on behalf of the state, but rather that Freed’s social media posts were within the realm of his authority as city manager. In analyzing whether a public official purports to exercise authority when speaking on social media, “appearance and function of the social-media activity are relevant.” Lindke’s focus solely on the appearance of Freed’s public Facebook page was not enough to satisfy his claim because he could not show that Freed’s conduct was attributable to the state (i.e., Freed was not “possessed of state authority”).

The power to act on behalf of the state comes from “statute, ordinances, regulation, custom or usage.” While statutes, ordinances and regulations refer to written law, custom and usage entail “persistent practices of state officials that are so permanent and well settled that they carry the force of the law.” Freed’s conduct would be authorized by the state if written in statutes, ordinances or regulations, or if past city managers engaged in similar conduct for so long that the city manager’s power has essentially become permanent and well settled. However, custom and usage cannot be predicated on broad descriptions that a government employee is authorized to speak for the state – “[t]he inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.”

When it comes to social-media activity, a public official must have both state authority and purport to use it. In the instant case, Freed’s Facebook page although labeled as “public” was not designated as either personal or official, which made his posts ambiguous and his page one of “mixed use.” Consequently, determining whether Freed possessed actual authority and purported to exercise that authority is fact specific, and the content and function of his posts are most important. For example, if a public official makes a clear statement expressing invocation of state authority, its legal effect, and that the announcement is not available elsewhere, it is clear that the official is discharging an official duty. In contrast, merely sharing or repeating otherwise available information is more likely to be deemed private speech by the official that is simply related to or concerning the official’s public employment.

In setting forth its two-step test, the Supreme Court vacated the Sixth Circuit’s judgment and remanded the case for further proceedings consistent with the standards set forth in its decision.

In sum, a public official who utilizes social media accounts and technology should take steps to ensure that personal accounts or posts are clearly designated as such to avoid exposure to personal liability under the First Amendment.

Members of Harris Beach’s Political Law Practice Group, Public Finance and Economic Development Practice Group and Municipalities and Local Agencies Industry Team are closely watching this development and related matters. If you have questions about this information or related matters, please reach out to Attorney Jared A. Kasschau at (516) 880-8106 and jkasschau@harrisbeach.com; Attorney Brian S. Stolar at (516) 880-8383 and bstolar@harrisbeach.com; Attorney Chiara A. Haueter at (516) 880-8105 and chaueter@harrisbeach.com; or the Harris Beach attorney with whom you regularly work.

This alert does not purport to be a substitute for advice of counsel on specific matters.

Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.


Footnotes

  • 1 In Knight First Amendment Inst. at Columbia v. Trump, the plaintiffs sued Trump after he blocked them on Twitter because they expressed views he disliked. The District Court for the Southern District of New York found that Trump’s Twitter account was an “interactive space” in a public forum, and that Trump’s blocking of plaintiffs from his account constituted viewpoint discrimination in violation of the First Amendment. The Second Circuit affirmed. In its decision, the Second Circuit focused on the appearance of Trump’s account. Notably, that Trump used his account “as a channel for communicating and interacting with the public about his administration” and, moreover, the public presentation of Trump’s account and the webpage associated with it “bear all the trappings of an official, state-run account.” Trump’s Twitter page was registered to “Donald J. Trump, 45th President of the United States of America, Washington, D.C.” and the account’s header photos showed Trump engaged in the performance of his official duties, such as signing executive orders and delivering remarks at the White House. Further, multiple members of Trump’s administration described Trump’s use of the account as official, and Trump’s assistant also operated the account “to announce, describe, and defend his policies; to promote the Administration’s legislative agenda; to announce official decisions; engage with foreign political leaders; and to challenge media organizations.” The Supreme Court granted certiorari and ultimately remanded the case to be dismissed as moot due to Twitter removing Trump’s account from the Twitter website.
  • 2 In Garnier v. O’Connor-Ratcliff, the plaintiffs sued two members of a school district’s Board of Trustees after the trustees’ blocked them on Facebook and Twitter because they posted criticisms of the board and school district. The District Court for the Southern District of California concluded that the Trustees’ had acted under state authority in violation of the First Amendment when they banned plaintiffs from their social media pages, holding that the trustees’ posts were “linked to events which arose out of their official status” as board members, the content of their posts “went beyond their policy preferences or information about their campaigns for reelection” and “the content of many of their posts was possible because they were clothed with the authority of state law.” The District Court further concluded that the comment portions of the trustees’ social media pages were public fora. The Ninth Circuit affirmed. In its decision, the Ninth Circuit focused on the appearance and content of the trustees’ social-media pages. Notably, that the trustees’ identified themselves on social media as “government officials” and listed their official titles in prominent places on both their Facebook and Twitter pages. Moreover, the content of the trustees’ pages was “overwhelmingly geared toward providing information to the public about” the school district and board’s official activities, including “soliciting input from the public on policy issues” relevant to board decisions. Both trustees regularly posted about school board meetings, surveys related to school district policy decisions, district hiring processes, budget planning and public safety issues – “[s]o, both through appearance and content, the Trustees held their social media pages out to be official channels of communication with the public.” The Ninth Circuit also found that the trustees’ social media pages presented “as official outlets facilitating their performance” of their Board responsibilities and “had the purpose and effect of influencing behavior of others.” The trustees’ social media pages were meaningful to their governmental status because they kept the public apprised of school district accords with the board’s “power to inform and make known to the citizens of the district, the educational programs and activities of the schools therein.” Although the Supreme Court granted certiorari, it remanded the case for further proceedings consistent with its decision in Lindke.