{"id":10446,"date":"2024-05-20T12:29:13","date_gmt":"2024-05-20T19:29:13","guid":{"rendered":"https:\/\/www.pacificalawgroup.com\/?p=10446"},"modified":"2024-05-21T12:09:05","modified_gmt":"2024-05-21T19:09:05","slug":"lindke-v-freed-ruling","status":"publish","type":"post","link":"https:\/\/www.pacificalawgroup.com\/lindke-v-freed-ruling\/","title":{"rendered":"U.S. Supreme Court Ruling Offers Important Social Media Guideposts for Government Officials"},"content":{"rendered":"

In March 2024, the United States Supreme Court issued its decision in Lindke v. Freed<\/em><\/a>, 601 U.S. 187 (2024), a case in which a city manager (Freed) blocked a constituent (Lindke) from his Facebook page and deleted some of the citizen\u2019s comments on his posts. Lindke sued for First Amendment retaliation, arguing that Freed\u2019s blocking and post deletions constituted state action. (The First Amendment prohibits only governmental abridgment of speech, not private abridgment.) The district court granted summary judgment to Freed and the Sixth Circuit affirmed, with both courts focusing on the absence of government involvement in managing Freed\u2019s Facebook page, which he had personally created in college and maintained himself. The Supreme Court reversed, holding that a public official\u2019s social media activity may be attributable to the state if (and only if) the official: \u201c(1) possessed actual authority to speak on the State\u2019s behalf, and (2)\u00a0purported to exercise that authority when he spoke on social media.\u201d The Court remanded the case for the district court to apply the announced standard.<\/p>\n

While emphasizing that \u201cthe state-action doctrine demands a fact-intensive inquiry,\u201d Justice Barrett\u2019s decision for a unanimous Court offers some important guideposts\u2014and warnings\u2014for government officials using social media.<\/p>\n

Authority to Speak for the Government<\/h2>\n

On the first prong (whether the official has actual authority to speak for the government), courts must pay \u201ccareful attention to the relevant statute, ordinance, regulation, custom, or usage\u201d to determine whether the social media speech in question falls within the \u201cscope of an official\u2019s power.\u201d The Court explained: \u201cThe inquiry is not whether making official announcements could <\/em>fit within the job description; it is whether making official announcements is actually <\/em>part of the job that the State entrusted the official to do.\u201d As a \u201cthreshold\u201d requirement of state action, the defendant \u201cmust have actual authority rooted in written law or longstanding custom to speak for the State,\u201d and \u201c[t]hat authority must extend to speech of the sort that caused the alleged rights deprivation.\u201d<\/p>\n

Post Content, Disclaimers, and the Exercise of Authority<\/h2>\n

Second, in addition to the official having authority to speak on the state\u2019s behalf, the official must also claim to use that authority when speaking on social media. This is, the Court noted, a \u201cfact-specific undertaking in which the post\u2019s content and function are the most important considerations.\u201d Disclaimers or labels\u2014such as \u201cthe views expressed are strictly my own\u201d or \u201cthis is the personal page of John Doe\u201d\u2014can give speech clear context and thus would \u201centitle[] it to a heavy .\u00a0.\u00a0. presumption that all of the posts on [the] page [are] personal.\u201d That presumption, however, is \u201cnot irrebuttable.\u201d So “an official cannot insulate government business from scrutiny by conducting it on a personal page,\u201d such as a mayor \u201chost[ing] a city council meeting online by streaming it only on his personal Facebook page.\u201d That would still be state action.<\/p>\n

On the other hand, an account that \u201cbelongs to political subdivision (e.g<\/em>., a \u201cCity of Port Huron\u201d Facebook page) or is passed down to whomever occupies a particular office (e.g.<\/em>, an \u201c@PHuronCityMgr Instagram account),\u201d would \u201cmake clear that [it] purports to speak for the government.\u201d Another clear case of state action\u2014a \u201cslam dunk,\u201d in the Court\u2019s phrase\u2014would be an announcement of a policy decision shared \u201cexclusively\u201d on a public official\u2019s Facebook page, such as a mayor\u2019s temporary suspension of parking rules. In contrast, if a public official \u201cmerely repeats or shares otherwise available information,\u201d it would be \u201cfar less likely that he is purporting to exercise the power of his office.\u201d<\/p>\n

Risks of \u201cMixed-Use\u201d Social Media Accounts<\/h2>\n

What made Freed\u2019s account \u201chazier\u201d than the Court\u2019s hypothetical examples was that it was not designated as either \u201cpersonal\u201d or \u201cofficial\u201d and that he \u201cmade some posts in his personal capacity\u201d (like family photos and Bible quotes) and \u201cothers in his capacity as city manager\u201d (like the city\u2019s pandemic response). Such \u201cmixed use\u201d accounts can pose considerable line-drawing challenges for both governments and courts. In such \u201c[h]ard-to-classify cases,\u201d courts should look for \u201cadditional factors,\u201d including whether the official \u201cuses government staff to make a post,\u201d which would make it \u201chard .\u00a0.\u00a0. to deny that he was conducting government business.\u201d<\/p>\n

Although the Court did not telegraph on which side of the line this case will ultimately fall, it did note one additional consideration that may bode poorly for the city on remand: Because Freed both deleted<\/em> certain of Lindke\u2019s comments on his Facebook page and blocked<\/em> him altogether from the page, the district court will \u201chave to consider whether Freed had engaged in state action with respect to any<\/em> [emphasis added] post on which Lindke wished to comment.\u201d The Court explained that the \u201cbluntness of Facebook\u2019s blocking tool highlights the cost of a \u2018mixed use\u2019 social-media account,\u201d as well as its risks: \u201cA public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.\u201d<\/p>\n

For questions the First Amendment and state action, or other constitutional matters, please reach out to any member of our Litigation team<\/a>.<\/p>\n

Please click here to download a PDF of this article<\/em><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

In March 2024, the United States Supreme Court issued its decision in Lindke v. Freed, 601 U.S. 187 (2024), a…<\/p>\n","protected":false},"author":5,"featured_media":10448,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[57,9,14,59],"tags":[],"class_list":["post-10446","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-featured-clients","category-litigation","category-politics_policy","category-stories"],"acf":[],"jetpack_featured_media_url":"https:\/\/www.pacificalawgroup.com\/wp-content\/uploads\/2024\/05\/lindke-v-freed-supreme-court-alert.png","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/posts\/10446","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/users\/5"}],"replies":[{"embeddable":true,"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/comments?post=10446"}],"version-history":[{"count":0,"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/posts\/10446\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/media\/10448"}],"wp:attachment":[{"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/media?parent=10446"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/categories?post=10446"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.pacificalawgroup.com\/wp-json\/wp\/v2\/tags?post=10446"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}