Supreme Court Decides Important Social Media Case

Posted on April 11, 2024

Important Takeaways: The Supreme Court has introduced a new test to determine if a public official is acting as a private citizen or within their official capacity when making social media posts.

Facts: James Freed had a private Facebook profile that he eventually made public so anyone could see his posts. On his Facebook, he had put that he was the City Manager of Port Huron, Michigan. On his profile, Freed mostly posted about his personal life but would sometimes post information relating to his job, such as highlighting communications from other city employees and asking for public input on issues. Freed often responded to comments about city matters but occasionally deleted comments that he considered “derogatory” or “stupid.”

During COVID, Freed posted on his Facebook about the pandemic. Some posts were personal, and some were related to his job. Kevin Lindke commented on some of these posts expressing his displeasure with the city’s approach to the pandemic. Freed started deleting the comments and eventually blocked Lindke from commenting at all. Lindke sued Freed, alleging Freed violated his First Amendment rights because he stopped him from making speech in a public forum.

The Supreme Court held that a public official who prevents someone from commenting on their social media page engages in state action 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. The Court explained that the distinction between private conduct and state action turns on substance, not someone’s employment label. They held that Freed acted in his private capacity when he blocked Lindke and deleted his comments, therefore he did not violate Lindke’s rights. Unless Freed was given state authority to post city updates and solicit citizen concerns, his conduct is not attributable to the state. The question is not whether the statement could fit within the official’s job description, the question is whether it actually is part of their job that the state has hired them to do.

The Court further went on to explain that government employees do not shed their constitutional rights just by being government employees. Government employees can still speak as citizens addressing matters of public concern. This includes their ability to speak about information related to or learned through their public employment as long as the speech is not itself ordinarily within the scope of their job duties.

Disclaimers like “the views expressed are strictly my own” or labels such as “this is the personal page of James R. Freed” create a heavy, not irrebuttable, presumption that all of the posts on a page are personal. Context can make it clear that a social media account speaks for the government. For example, a “City of Port Huron” page would purport to speak on behalf of the government. Freed’s page was not designated as either personal or official so posts on the page must be categorized individually as personal or official. The Court explained that this is a fact-specific analysis. The post’s content and functions are the most important considerations. An official may not necessarily purport to exercise their authority simply by posting a matter within it.

The Court further went on to explain that when someone is blocked from a page, the analysis becomes whether the person blocking them was acting as a private citizen on every single post on the page. When someone deletes comments, the analysis only matters to that post. When social media is used both personally and officially, blocking individuals runs the risk of liability for not allowing someone to comment on official state posts.

What this means: A public official who prevents someone from commenting on their social media page engages in state action 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. This means trustees cannot prevent individuals from commenting on their posts if they are acting within their official capacity as a public official. Public officials should make it clear on their pages and posts whether they are acting within their official capacity. Individual posts may be considered state action, even if the whole social media page is not.

For now, districts should follow the ruling of the circuit they are located in and continue to wait for updates in caselaw and federal regulations.

As you consider these and other issues, we recommend you speak with your school lawyer or contact Bea, Megan, Beth, Kevin, and Kali at 406-542-1300 to discuss these issues.