When is Social Media Activity by Officials Attributable to the Government?

On March 15, 2024, the United States Supreme Court issued a decision in Lindke v. Freed, 601 U.S. 187 (2024), which articulates a two-part test for when a public official’s social media activity constitutes state action. According to the Court, a public official’s posts on social media are attributable to the government if (1) the official had the actual authority to speak on the government’s behalf, and (2) the official purported to speak on the government’s behalf.

Background

James Freed started a private Facebook page in 2008. Because he reached Facebook’s friend limit, Freed made his page public, meaning anyone could see and comment on his posts.

In 2014, Freed became City Manager for Port Huron, Michigan. In his Facebook bio, Freed identified himself as a father, husband, and “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” After his appointment as City Manager, Freed posted information related to his job on his Facebook page, interacted with Port Hurson residents about City business via Facebook, and used his Facebook page to solicit feedback from residents.

Freed continued to make personal and professional posts on Facebook during the COVID-19 pandemic. Kevin Linke commented on Freed’s COVID-19-related posts, voicing his displeasure with how Port Huron was handling the pandemic. Freed deleted Lindke’s comments on his Facebook page and ultimately blocked Lindke. Lindke then sued Freed under 42 U.S.C. § 1983, alleging Freed had violated his First Amendment rights by blocking him and deleting his comments.

Court Articulates a Standard for Determining When Online Posts by State or Local Government Officials May be Actionable

Section 1983 provides a plaintiff a cause of action against a state or local government official when the official’s action is attributable to the government. Under § 1983, an official’s action may be attributable to a state or local government when a statute, ordinance, or regulation authorizes the official to act, or when the customs or practices of the government (such as an official’s job description) authorize the official to act.

The critical issue in this case was whether Freed’s actions on Facebook were those of a government employee or a private citizen. Ultimately, the Supreme Court created a two-part test to answer this inquiry. “[A] public official’s social-media activity constitutes state action under § 1983 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.” Lindke, 601 U.S. at 198.

Court Provides Helpful Guidance to State and Local Government Officials

While the Court emphasized that determining whether a governmental official’s speech on social media constitutes state action requires a fact-based, context-specific analysis, the Court provided some practice pointers for government officials regarding when they are purporting to speak for the government online.

For example, the type of social media account is important. If the official posts on a government account, courts may presume the official is purporting to speak on behalf of the state. However, if the social media account is a mixed-use account, such as Freed’s Facebook page, which included personal and professional posts, a disclaimer such as “The Personal Page of___________; Views Expressed Are Strictly My Own” entitles the official to “a heavy…presumption that all of the posts on [the] page [are] personal.” Lindke, 601 U.S. at 202.

Bottom Line

The Court has adopted a two-part test to determine whether a state or local government official’s speech on social media is actionable under § 1983. A state or local government official’s speech on social media constitutes state action only if (1) the official had the legal authority to speak on the government’s behalf, and (2) the official purported to speak on the government’s behalf.

To protect themselves, elected or appointed government officials who operate their own social media accounts to post on personal and professional matters should avail themselves of the Court’s guidance and include a disclaimer on their social media accounts stating that the accounts are personal and that the posts are the views of the user.