Decision Alert: Supreme Court Issues Unanimous Decision Establishing New Test to Determine State Action Liability in Lindke and O’Connor-Ratcliff

On March 15, 2024, the Court in Lindke v. Freed unanimously held that a government official may block members of the public from the official’s social media page because social media is not “public fora” for purposes of the “state action” doctrine when the official speaks in their capacity as a private citizen, even if the post is about government concerns.

As summarized in Dykema’s December 2023 edition, the issue in Lindke arose when James Freed, the City Manager of Port Huron, Michigan, used a Facebook account to communicate information of government concern to the public. He converted his personal Profile account to a Facebook “Page,” which identified him as a “Public Figure.” He used that “Page” to share information about City initiatives and policies, as well as personal posts. Kevin Lindke, a resident of Port Huron, posted comments on Freed’s Facebook Page criticizing him as an official. After Freed blocked Lindke’s accounts and deleted his comments, Lindke sued, alleging that Freed violated his First Amendment rights. The district court granted summary judgment for Freed and the Sixth Circuit affirmed. The Supreme Court vacated the Sixth Circuit’s decision and remanded the case for consideration under the Supreme Court’s new state-action test.

Writing for the Court, Justice Amy Coney Barrett clarified that state action, which creates a public forum and thereby a right of the public to access that forum, arises only when the official: (1) possesses actual authority to speak on the State’s behalf on a particular matter, and (2) purports to exercise that authority when speaking—as here, in Freed’s social-media posts. According to the Court, a public official “does not relinquish his First Amendment rights” when he assumes public office. Rather, he retains his right as a citizen to speak on matters of public concern. The test is not whether the official’s post falls within the “scope” of his official duties; the dispositive inquiry is whether he possesses the “authority” to speak on the government’s behalf regarding the specific content of the post.

Emphasizing the fact-bound nature of this inquiry, the Court reasoned that Freed’s status as a state employee, alone, did not determine the line between private conduct and state action. The Court found these facts to be most relevant: Freed primarily used his Page to share content related to his personal life; he also shared posts made by other public officials about matters of public concern and solicited feedback from the public; sometimes his posts were on topics within the purview of his official duties (e.g., city planning); and at times they were not (e.g., COVID hospitalization figures). Lindke’s later-blocked comments were about the COVID pandemic, the posts underlying the litigation. Freed had “some authority” to communicate with the public on behalf of the government, but not about matters of public health. Because the COVID-related public health content was not “traceable” to Freed’s “bailiwick” of authority, the Court determined that Freed acted in his private capacity when he blocked Lindke and deleted his comments, exercising Freed’s own First Amendment rights, not violating Lindke’s.

The same day, the Court issued a per curiam decision in O’Connor Ratcliff v. Garnier, vacating and remanding the Ninth Circuit’s decision in light of Lindke. As summarized in Dykema’s December 2023 edition, the dispute in O’Connor-Ratcliff arose when elected members of a school district’s board of trustees blocked two parents from accessing or posting comments on the trustees’ social media accounts. The district court granted declaratory and injunctive relief to the parents but found that the trustees had qualified immunity from the damages claims. The Ninth Circuit affirmed but now, on remand, will have to reevaluate under Lindke.

Takeaways

Determining the scope of an official’s power requires careful attention to any relevant “statute, ordinance, regulation, custom, or usage” to decide what his authority “reasonably encompasses.” This may pose a challenge for public discourse as both officials and everyday constituents are tasked with understanding the scope of an official’s authority, constituents’ rights, and the fact-bound legal machinations that inform the bounds of free speech. Here are some takeaways that may lighten that burden.

• An official’s authority to speak on the government’s behalf on a social media platform is determined based on the scope of the official’s authority and the specific content, not their status as a government official.
• If officials use social media accounts to communicate information about government concerns, they should include disclaimers designating that content as personal or official. Failing to do so may expose them to liability.
• In the words of Justice Barrett, “technology matters.” If page-wide blocking, like Facebook’s, is the only option, public officials may be unable to prevent someone from commenting on their personal posts or posts outside the scope of their authority without risking liability for also preventing comments on their official posts.

For more information, please contact Chantel Febus, James Azadian, Cory Webster, Christopher Sakauye, Monika Harris, Puja Valera, A. Joseph Duffy, IV., or Heming Xu.