On March 15, 2024 the United States Supreme Court issued two decisions: Lindke v. Freed, No. 22-611, and O’Connor-Ratcliff v. Garnier, No. 22-324, which directly affect the free speech rights of public officials in the current age of social media usage. Both cases involve public officials’ use of social media to communicate regarding public affairs. The cases gave the Supreme Court an opportunity to resolve a circuit court split over how to identify state action in the context of public officials posting to social media and deleting comments by others. It also highlights the dangers and inevitable frustrations of using social media as a public official in an official capacity, because both cases involved public officials who deleted or blocked posts on their pages from members of the public who were repeatedly critical of them.  

In Lindke v. Freed, James Freed, the city manager of Port Huron, Michigan, converted his Facebook page from “private” to “public” allowing anyone to see and comment on his posts. His page described him as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” He operated the page and posted periodically (and primarily) about his personal life, but he also posted information related to his job, such as highlighting communications from other city officials and soliciting feedback from the public on issues of concern. Freed often responded to comments on his posts, including those left by city residents with inquiries about community matters. He occasionally deleted comments that he considered “derogatory” or “stupid.”

After the COVID–19 pandemic began, Freed posted about it. Some posts were personal, and some contained information related to his job. Facebook user Kevin Lindke commented on some of Freed’s posts, unequivocally expressing his displeasure with the city’s approach to the pandemic. Initially, Freed deleted Lindke’s comments, and he later blocked him from commenting at all. Lindke sued Freed under 42 U. S. C. §1983, claiming that Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page because it was a public forum. The District Court determined that because Freed managed his Facebook page in his private capacity, and because only state action can give rise to liability under §1983, Lindke’s claim failed. The Sixth Circuit Court of Appeals affirmed.

In O’Connor-Ratcliff v. Garnier, two members of the Poway Unified School District Board of Trustees (“PUSD”) created Facebook pages to promote their campaigns for election to that local school board. They both maintained separate personal Facebook pages that they shared with friends and family, but they used their public pages for campaigning and issues related to PUSD-related content, such as board-meeting recaps, application solicitation for board positions, local budget plans and surveys, and public safety updates, as well as to solicit feedback and communicate with constituents. Their public Facebook pages described them as “Government Officials” and noted their official positions. One of the two, O’Connor-Ratcliff, also created a public Twitter page, which she used much the same way.

In that case, two local residents, Christopher and Kimberly Garnier, who had children attending PUSD schools, frequently criticized the board of trustees. They began posting lengthy, repetitive comments on the two board members’ social media posts, including nearly identical comments on 42 separate posts on O’Connor-Ratcliff ’s Facebook page and 226 identical replies within a 10-minute span to every tweet on her Twitter feed. Like Freed in the other case, the board members responded by initially deleting the comments, but eventually wound up blocking the Garniers’ from commenting altogether.

The Garniers sued the board members under 42 U. S. C. §1983, seeking damages and declaratory and injunctive relief for the alleged violation of their First Amendment rights. At summary judgment, the District Court granted the defendants qualified immunity as to the damages claims but allowed the case to proceed on the merits on the ground that the board members acted “under color of” state law when they blocked the Garniers. The Ninth Circuit Court of Appeals affirmed, holding that §1983’s state action requirement was satisfied because there was a “close nexus between the Trustees’ use of their social media pages and their official positions.” Applying its own state-action precedents, the Ninth Circuit found state action on the part of the board members based largely on the official “appearance and content” of their pages.

The United States Supreme Court granted certiorari in order to resolve the split between the two circuit courts and articulated a new standard for determining when a state official is acting under color of state law for purposes of 42 U.S.C. § 1983, rather than exercising her/his own First Amendment rights to free speech. On review, the Supreme Court held that a public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if the official both: (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.

As to the inquiry under the first prong of the analysis, the Supreme Court noted that “to misuse power, one must possess it in the first place.” It held that, unless the public officials in question were “possessed of state authority,” in Freed’s case for example, the authority to post city updates and register citizens’ concerns, their conduct is not attributable to the State. If acting in their private capacities when blocking or deleting comments from other posters, then the public officials would be exercising their own First Amendment rights, rather than violating that of the members of the public they blocked or whose comments they deleted. This may be a fact-sensitive inquiry. The Supreme Court reasoned:

Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed’s bailiwick. There must be a tie between the official’s authority and the gravamen of the plaintiff’s complaint.

. . . . The threshold inquiry to establish state action is not whether making official announcements could fit within a job description but whether making such announcements is actually part of the job that the State entrusted the official to do.

[Lindke v. Freed, 601 U.S. ____ (2024), slip op. at 9-12.]

On the second prong, the Supreme Court held further that an official must not only possess actual state authority, but also purport to use it. The Court noted that, if Freed’s Facebook page had carried a label stating that “this is the personal page of James R. Freed,” he would be entitled to a “heavy presumption” that all of his posts were personal, but his page was neither designated as “personal” nor “official.” Therefore, the Court held that a fact-specific inquiry into the posts and their content, as well as the nature of the social media technology, is required. In Freed’s case, because Facebook’s blocking tool operates on a page-wide basis, the trial court would have to consider each post and determine whether Freed had engaged in any state action with respect to any posts on which Lindke wished to comment. For example, “a post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal. Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts.”

As a result, the Supreme Court remanded both cases for further review by the District Court applying the above standards. In addition to clarifying an important issue of First Amendment rights that is relevant to most public officials in the current information age where social media is ubiquitous and pitfalls regarding accusations of censorship abound, this case provides guidance to local public officials on the importance of either avoiding the blending of social media with their official duties or of carefully calibrating their social media usage to ensure they are not unwittingly creating public forums that they will later have difficulty moderating, if and when members of the public begin posting on their social media accounts.  

Clients should consult directly with Board legal counsel should issues such as these arise.

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