On March 15, 2024, the United States Supreme Court, in Lindke v. Freed and O’Connor-Ratcliff v. Garnier established a new standard to assess whether a social medial account run by local, state, or federal government officials subjects that public official to a potential First Amendment violation under 42 U.S.C. Section 1983. The decisions clarify when public officials deleting posts and blocking users is inappropriate on their private social media accounts.
I.
O’Connor-Ratcliff v. Garnier and Lindke v. Freed
O’Connor-Ratcliff v. Garnier
In 2014, Michelle O’Connor-Ratcliff and T. J. Zane created public Facebook pages to promote their campaigns for election to the Poway Unified School District Board of Trustees. After being elected to the Board, the social media accounts evolved into O’Connor-Ratcliff’s and Zane’s pages to post PUSD-related content. They also used their pages to solicit feedback and communicate with constituents. Christopher and Kimberly Garnier began posting lengthy and repetitive posts that were critical of the Trustees on the social-media accounts. While O’Connor-Ratcliff and Zane initially deleted the Garniers’ comments from their posts, they ultimately blocked them from commenting on their pages. The Garniers sued both O’Connor-Ratcliff and Zane under 42 U.S.C. Section 1983 for allegedly violating their First Amendment rights.
The Ninth Circuit ruled that blocking these individuals was “state action” because there was a “close nexus between the Trustees’ use of their social media pages and their official positions.”
Lindke v. Freed
In 2008, James Freed created a private Facebook profile. When Freed began nearing the platform’s 5,000-friend limit, he converted his profile to a public “page.” In 2014, Freed updated his Facebook page and began posting about his appointment as City Manager of Port Hurton, Michigan, information related to his job, and soliciting feedback from the public on issues of concern, all while continuing to post personal family information and images. Kevin Lindke objected to the content of Freed’s posts. He particularly took issue with the City’s handling of the COVID-19 pandemic. Initially, Freed deleted Lindke’s comments and subsequently blocked him from commenting, but Lindke remained able to view Freed’s Facebook page.
Due to being blocked, Kevin Lindke sued James Freed under 42 U.S.C. Section 1983, alleging that Freed violated his First Amendment right because he was not allowed to post to Freed’s Facebook page, which he considered to be a public forum. However, the Sixth Circuit did not find a constitutional violation because Freed managed his Facebook page in his private capacity, and because only state action can give rise to liability under Section1983.
II.
New Standard Court Will Use to Determine if a Public Official’s
Statement Constitutes State Conduct
The Court clarified the ability to delete and block users on the official’s social media account in Lindke and O’Connor-Ratcliff. 42 U.S.C. Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State,” deprives someone of a federal constitutional or statutory right. And when a state or municipal employee violates a federal right, such as a First Amendment right, while acting “under color of law,” he can be sued in an individual capacity, as Freed was here. Simply put, this provision protects against actions attributable to a state, not those of a private person.
As the Court has long held, public officials and employees do not surrender their first amendment rights when they assume a public position. The Court noted in Lindke that “a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State.” The Court wrote, “The first prong of this test is grounded in the bedrock requirement that ‘the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.’ An act is not attributable to a State unless it is traceable to the State’s power or authority.” “By contrast, when the challenged conduct ‘entail[s] functions and obligations in no way dependent on state authority,’ state action does not exist.” Authority granted by statute, ordinance, regulation, custom or usage “must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.”
It also clarified that “State officials have a choice about the capacity in which they choose to speak.” State officials “must also purport to use” the authority to qualify as state action. The Court cautioned that, “The 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.”
Thus, the U.S. Supreme Court ruled in Lindke that a public official who prevents someone from commenting on the official’s social-media page engages in “state action” under 42 U.S.C. Section 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. However, if an official has authority to speak for the state, such as by authority of some ordinance, he may have the authority to do so on social media even if the law does not make that explicit.
The Court raised a cautionary note for those who post about arguably city-related actions on their otherwise private social media accounts. Such accounts may be treated as “mixed use” such that blocking someone from posting any comments could subject an individual to liability for blocking posts on “official” matters. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
In Lindke, the Court remanded the case for further assessment based on the new standard and advised the reviewing court to consider whether Freed had engaged in state action. In the companion case of O’Connor-Ratcliff, the Supreme Court overturned the Ninth Circuit standard and vacated the judgment for further proceedings consistent with the Lindke opinion and standard to determine if a public official’s actions with respect to her social media page constitute state conduct.
III.
Conclusion
The Court significantly clarified if/when city officials’ and employees’ social media can be considered speaking for the agency. Cities must evaluate their social media policies and the municipal code to determine: 1) who has the ability to speak for the agency, and 2) in what situations, if any, the official or the employee is speaking for the city. While the ruling clarifies when a private post constitutes “state action,” it must be stressed that a private social media account does not, per se, mean that the content is not “state action.” The first step is to ensure that private accounts remain “private.” Thus, each agency should review and modify existing policies and procedures and/or the municipal code to clarify who can speak for the agency.
In addition, as noted by Justice Barrett, “Had Freed’s account carried a label (e.g., ‘this is the personal page of James R. Freed’) or a disclaimer (e.g., ‘the views expressed are strictly my own’), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Based upon this guidance, it is advisable that public officials label their social media pages with a disclaimer along the line of “the views expressed are strictly my own” or “this is the personal page of [Your Name Here].” Further, the Court also indicated that “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.” As such, we advise individuals to re-post materials announced on a city platform as opposed to making municipality related announcements on one’s own individual account.
Jones Mayer remains available to assist in answering any question that you may have in regard to the Lindke v. Freed ruling and to aid our clients in ensuring that officials minimize their exposure to liability. Please contact Jamaar M. Boyd-Weatherby or your City Attorney at 714.446.1400 or 916.771.0635.