The proliferation of social media has given public officials the ability to share information quickly and easily with their constituents and followers. The accessibility of officials on social media platforms also gives people a chance to interact with those officials and, in some cases, publicly air their grievances and dissatisfaction. In a perfect world, the discourse would be enlightening and productive, but as anyone who has ever spent time on social media can attest, that is not always the case.  Because the public Facebook accounts of public officials may be considered “public forums,” however, public officials who delete comments or block accounts run the risk of running afoul of the First Amendment. This raises the question: when is it ok to delete comments or even block your own constituents?

On March 15, 2024, the U.S. Supreme Court  issued two opinions suggesting that officials who intermingle personal and official business on their social media have latitude to delete commentary on their personal posts, but must do so in a way that does not restrict public discourse stemming from posts made as a state actor.

Lindke v. Freed

In the first case, Lindke v. Freed, the Court considered whether a city manager with a hybrid personal and professional Facebook account could be liable for viewpoint discrimination for deleting and eventually blocking comments from one of his constituents.

The manager, James Freed, created a private Facebook account prior to becoming city manager, and eventually converted it to a public page, meaning that anyone could see and comment on his posts. His Facebook profile also said that he was the city manager of Port Huron and indicated he was a “public figure.” Still, Freed’s posts were “prolifically (and primarily)” about his personal life, with other posts containing information relating to his job.

At the beginning of the Covid-19 pandemic, Freed made various posts about the pandemic as well as his efforts as city manager to mitigate its effects. One of his constituents, Kevin Lindke, responded to some of Freed’s posts by saying that the City’s pandemic response was “abysmal” and that “the city deserves better.” Freed initially deleted these posts, and eventually blocked Lindke altogether, meaning that Lindke could see but could no longer respond to Freed’s posts. In response, Lindke filed a lawsuit against Freed alleging that, by blocking him, Freed had violated Lindke’s First Amendment rights. Lindke argued that Freed’s Facebook page constituted a public forum, and any attempt to restrict Lindke’s statements in that forum were impermissible viewpoint discrimination in violation of Section 1983 of the Civil Rights Act. The Court’s analysis of whether Freed could be liable turned on whether, in deleting the posts and blocking Lindke, Freed was engaging in state action.

Lindke argued that Freed’s social-media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. The Court rejected this “appearances” argument and instead used a two-part test. Under the test, a public official’s social media activity constitutes state action only if the official: (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The Court further held that “[t]he appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.”

The Court determined that whether Freed was acting under the color of state law would be determined by the nature of the post; 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.  In practical terms, this means that blocking a member of the public from commenting on *any* posts could lead to liability if the post was one that invokes state authority, while merely deleting comments to personal posts would not.

Public Officials Do Not Relinquish Their Own First Amendment Rights on Social Media

The Court further found that Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” With that in mind, the Court remanded the decision to determine whether Freed was actually acting in his private capacity when he blocked Lindke and deleted his comments, in which case the Court said that Freed would not have violated Lindke’s First Amendment rights, he would have been exercising his own.

O’Connor-Ratcliff v. Garnier

The Court had also granted certiorari in  O’Connor-Ratcliff v. Garnier  in order to resolve a Circuit split about how to identify state action in the context of public officials using social media. In O’Connor-Ratcliff, the public officials had personal Facebook pages that they shared with friends and family and used to post district-related content, including board-meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates. They also used their pages to solicit feedback and communicate with constituents. Their Facebook pages described them as “Government Official[s]” and noted their official positions.

After two parents began to post repetitive comments, the trustees deleted the posts and also blocked the parents’ posts.  The Ninth Circuit found that because there was a “close nexus” between the trustees’ use of their social media pages and their official positions, the trustees acted under the color of state law for the purposes of determining liability for the parents’ first amendment § 1983 claims. The Ninth Circuit applied its own state-action precedent, where an off-duty state employee acts under color of law if she (1) purports or pretends to act under color of law; (2) had the purpose and effect of influencing the behavior of others; and (3) the harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental status or to the performance of her duties.

On review, the U.S. Supreme Court did not endorse the framework applied by the Ninth Circuit. The Court held that action based on the official “appearance and content” of the trustees’ pages was not sufficient to establish state action. Because the approach that the Ninth Circuit applied was different than the one elaborated in Lindke, the Court vacated that judgment, and remanded the case to the Ninth Circuit to re-evaluate the claims based on whether the trustees (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when they deleted and blocked the parents’ posts.

Keep Your Personal and Official Social Media Accounts Separate

These decisions give public officials wider latitude to have personal social media pages and block content on those pages so long as those posts were not made in order to fulfill the government official’s formal responsibilities and are instead in their personal capacity. Thus, the prudent course of action would be to clearly label any personal account as such, e.g., “this is the personal account of John Doe,” which, per the court in Lindke, would entitle the official to a “heavy presumption” that all of the posts are personal.  

If you have questions regarding these Supreme Court decisions, please reach out to any Franczek attorney.

The proliferation of social media has given public officials the ability to share information quickly and easily with their constituents and followers. The accessibility of officials on social media platforms also gives people a chance to interact with those officials and, in some cases, publicly air their grievances and dissatisfaction. In a perfect world, the discourse would be enlightening and productive, but as anyone who has ever spent time on social media can attest, that is not always the case.  Because the public Facebook accounts of public officials may be considered “public forums,” however, public officials who delete comments or block accounts run the risk of running afoul of the First Amendment. This raises the question: when is it ok to delete comments or even block your own constituents?

On March 15, 2024, the U.S. Supreme Court  issued two opinions suggesting that officials who intermingle personal and official business on their social media have latitude to delete commentary on their personal posts, but must do so in a way that does not restrict public discourse stemming from posts made as a state actor.

Lindke v. Freed

In the first case, Lindke v. Freed, the Court considered whether a city manager with a hybrid personal and professional Facebook account could be liable for viewpoint discrimination for deleting and eventually blocking comments from one of his constituents.

The manager, James Freed, created a private Facebook account prior to becoming city manager, and eventually converted it to a public page, meaning that anyone could see and comment on his posts. His Facebook profile also said that he was the city manager of Port Huron and indicated he was a “public figure.” Still, Freed’s posts were “prolifically (and primarily)” about his personal life, with other posts containing information relating to his job.

At the beginning of the Covid-19 pandemic, Freed made various posts about the pandemic as well as his efforts as city manager to mitigate its effects. One of his constituents, Kevin Lindke, responded to some of Freed’s posts by saying that the City’s pandemic response was “abysmal” and that “the city deserves better.” Freed initially deleted these posts, and eventually blocked Lindke altogether, meaning that Lindke could see but could no longer respond to Freed’s posts. In response, Lindke filed a lawsuit against Freed alleging that, by blocking him, Freed had violated Lindke’s First Amendment rights. Lindke argued that Freed’s Facebook page constituted a public forum, and any attempt to restrict Lindke’s statements in that forum were impermissible viewpoint discrimination in violation of Section 1983 of the Civil Rights Act. The Court’s analysis of whether Freed could be liable turned on whether, in deleting the posts and blocking Lindke, Freed was engaging in state action.

Lindke argued that Freed’s social-media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. The Court rejected this “appearances” argument and instead used a two-part test. Under the test, a public official’s social media activity constitutes state action only if the official: (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The Court further held that “[t]he appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.”

The Court determined that whether Freed was acting under the color of state law would be determined by the nature of the post; 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.  In practical terms, this means that blocking a member of the public from commenting on *any* posts could lead to liability if the post was one that invokes state authority, while merely deleting comments to personal posts would not.

Public Officials Do Not Relinquish Their Own First Amendment Rights on Social Media

The Court further found that Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” With that in mind, the Court remanded the decision to determine whether Freed was actually acting in his private capacity when he blocked Lindke and deleted his comments, in which case the Court said that Freed would not have violated Lindke’s First Amendment rights, he would have been exercising his own.

O’Connor-Ratcliff v. Garnier

The Court had also granted certiorari in  O’Connor-Ratcliff v. Garnier  in order to resolve a Circuit split about how to identify state action in the context of public officials using social media. In O’Connor-Ratcliff, the public officials had personal Facebook pages that they shared with friends and family and used to post district-related content, including board-meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates. They also used their pages to solicit feedback and communicate with constituents. Their Facebook pages described them as “Government Official[s]” and noted their official positions.

After two parents began to post repetitive comments, the trustees deleted the posts and also blocked the parents’ posts.  The Ninth Circuit found that because there was a “close nexus” between the trustees’ use of their social media pages and their official positions, the trustees acted under the color of state law for the purposes of determining liability for the parents’ first amendment § 1983 claims. The Ninth Circuit applied its own state-action precedent, where an off-duty state employee acts under color of law if she (1) purports or pretends to act under color of law; (2) had the purpose and effect of influencing the behavior of others; and (3) the harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental status or to the performance of her duties.

On review, the U.S. Supreme Court did not endorse the framework applied by the Ninth Circuit. The Court held that action based on the official “appearance and content” of the trustees’ pages was not sufficient to establish state action. Because the approach that the Ninth Circuit applied was different than the one elaborated in Lindke, the Court vacated that judgment, and remanded the case to the Ninth Circuit to re-evaluate the claims based on whether the trustees (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when they deleted and blocked the parents’ posts.

Keep Your Personal and Official Social Media Accounts Separate

These decisions give public officials wider latitude to have personal social media pages and block content on those pages so long as those posts were not made in order to fulfill the government official’s formal responsibilities and are instead in their personal capacity. Thus, the prudent course of action would be to clearly label any personal account as such, e.g., “this is the personal account of John Doe,” which, per the court in Lindke, would entitle the official to a “heavy presumption” that all of the posts are personal.  

If you have questions regarding these Supreme Court decisions, please reach out to any Franczek attorney.