On March 15, 2024, the United States Supreme Court issued its opinion in a case entitled Lindke v. Freed.1 In this case, the Court established a new standard to assess whether a social media account managed by a local, state, or federal government official subjects that public official to a potential First Amendment violation under 42 U.S.C. section 1983 for deleting comments or blocking access by certain members of the public.
Background
In 2008, James Freed – then a college student – created a private Facebook profile when he was a college student. When Freed began nearing the platform’s 5,000-friend limit, he converted his profile to a “public page.” In 2014, Freed was appointed as City Manager of Port Hurton, Michigan, and he updated his Facebook page to reflect the new job. After his appointment, Freed continued to operate his Facebook page himself and continued to post prolifically (and primarily) about his personal life.2 Freed 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 in nature, and some contained information related to his job as the City Manager. 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. Subsequently, he blocked Lindke from commenting, but Lindke remained able to view Freed’s Facebook page.
After being blocked, Lindke sued Freed under 42 U.S.C. section 1983, alleging that Freed violated his First Amendment rights because he wasn’t allowed to post to Freed’s Facebook page. As Lindke saw it, he had the right to comment on Freed’s Facebook page, which he characterized as a public forum. Freed, Lindke claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. However, the District Court granted summary judgment to Freed, and the Sixth Circuit Court of Appeals affirmed. In examining the case, 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 Section 1983. The Supreme Court granted certiorari, noting that the Sixth Circuit’s approach to state action in the social-media context differs from that of the Second and Ninth Circuits, which focus less on the connection between the official’s authority and the account and more on whether the account’s appearance and content look official.3
Discussion
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. The Supreme Court observed that Section 1983’s “under color of” text makes clear that it is a provision designed as a protection against acts attributable to a State, not those of a private person.4 The high court noted, “Courts do not ordinarily pause to consider whether Section 1983 applies to the actions of police officers, public schools, or prison officials. Sometimes, however, the line between private conduct and state action is difficult to draw.” The Court further stated, “Freed’s status as a state employee is not determinative. The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights—including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms. Here, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own.”
The Supreme Court noted the “bedrock requirement that ‘the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.’ Lugar v. Edmondson Oil Co., 457 U. S. 922, 937 (emphasis added).” Unless Freed was “possessed of state authority” to post city updates and register citizen concerns, Griffin v. Maryland, 378 U. S. 130, 135 (1964), his conduct would not be attributable to the State.
The Court ultimately ruled 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 further stated, “For social-media activity to constitute state action, an official must not only have state authority, he must also purport to use it.[5] If the official does not speak in furtherance of his official responsibilities, he speaks with his own voice.[6] Here, if Freed’s account had carried a label — e.g., ‘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 Freed’s page was not designated either ‘personal’ or ‘official.’ The ambiguity surrounding Freed’s page requires a fact-specific undertaking in which posts’ content and function are the most important considerations. 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,[7] the plaintiff must show that the official purports to exercise state authority in specific posts.”
The Court raised a cautionary note for those who post about arguably municipal-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.”
The Supreme Court ultimately 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.
HOW THIS AFFECTS YOUR AGENCY
For those who operate social media accounts that are personal in nature, the Court provided some guidance on Section 1983 liability avoidance. As noted above, clearly designating an account as “personal” in nature provides a “heavy presumption” that posts on the platform are personal actions and not official State action. In addition, providing links to official communications (such as to a County website) on a platform, rather than making original pronouncements on issues that relate to municipal concerns, further insulates one from potential liability. Finally, maintaining social media accounts as “private” rather than “public” also provides a presumption that the account is personal in nature, rather than an official governmental speech platform. Public officials would be wise to consult with legal counsel to obtain further guidance on structuring social media accounts and crafting their posts in order to minimize Section 1983 liability exposure for impairing First Amendment rights.
As always, if you want to discuss any of this in greater detail, do not hesitate to contact James Touchstone at jrt@jones-mayer.com or by telephone at (714) 446-1400.Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.
1218 L.Ed.2d 121 (U.S. 2024).
2For example, Freed uploaded hundreds of photos of his daughter. He shared about outings like the Daddy Daughter Dance, dinner with his wife, and a family nature walk. He posted Bible verses, updates on home-improvement projects, and pictures of his dog, Winston.
3See, e.g., Garnier v. O’Connor-Ratcliff, 41 F. 4th 1158, 1170-1171 (CA9 2022); Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F. 3d 226, 236 (CA2 2019), vacated as moot sub nom. Biden v. Knight First Amdt. Inst. at Columbia Univ., 593 U. S. ___, 141 S. Ct. 1220, 209 L. Ed. 2d 519 (2021).
4The Court noted that “[t]his limit tracks that of the Fourteenth Amendment, which obligates States to honor the constitutional rights that [Section] 1983 protects. [Section]1 (‘No State shall . . . nor shall any State deprive . . . ‘ (emphasis added));” see also Lugar v. Edmondson Oil Co., 457 U. S. 922, 929 (1982) (“[T]he statutory requirement of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical”).
5See Griffin, supra, 378 U. S., at 135.
6“[G]enerally, a public employee” purports to speak on behalf of the State while speaking “in his official capacity or” when he uses his speech to fulfill “his responsibilities pursuant to state law.” West v. Atkins, 487 U. S. 42, 50 (1988).
7See, e.g., Lane v. Franks, 573 U. S. 228, 235-236 (2014).