U.S. Supreme Court Ruling on Public Officials Blocking Users on Social Media

On March 15, 2024, the United States Supreme Court (Court), in a unanimous opinion, articulated a two-part test for determining whether a public official acts on behalf of the government (i.e., engages in state action) when blocking an individual’s comments or the individual on the public official’s social media page.  See Lindke v. Freed, No. 22-611, 2024 WL 1120880 (U.S. Mar. 15, 2024); see also O’Connor-Ratcliff v. Garnier, No. 22-324, 2024 WL 1120878 (U.S. Mar. 15, 2024).

The Court’s opinion in Lindke, written by Justice Amy Coney Barrett, resolved a Circuit Court split between the Sixth and Ninth Circuit Courts of Appeals on the issue of whether public officials posting on social media pages act on behalf of the government, such that they would be in violation of the First Amendment if they blocked critics or the comments of such critics.  The Court held that a public official acts on behalf of the government “only if the official both (1) possessed actual authority to speak on the [government’s] behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.”

Circuit Court Split

Sixth Circuit. In Lindke, James Freed established a private Facebook page around 2008 and later publicized the page – allowing anyone to see and comment on his posts.  In 2014, Freed was appointed city manager of Port Huron, Michigan.  After his appointment, his Facebook page largely contained personal information; however, he also included some information about his position (e.g., his profile picture depicted him in a suit with a city pin; his “About” section read, “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI”; and he occasionally described the daily activities of the city manager position in his posts).

If he found comments from members of the public to be “derogatory” or “stupid” on his page, he would delete such comments.  Consistent with that approach, Freed began deleting several comments from Kevin Lindke, a community member who was dissatisfied with the COVID-19 response by Freed and other city officials.  Eventually, however, Freed blocked Lindke.

Lindke sued Freed under 42 U.S.C. § 1983, which gives an individual the right to sue a public official if the official acts “under the color of state law” (i.e., on behalf of the government) when depriving the individual of rights protected by the Constitution or law.  Lindke alleged that Freed violated Lindke’s First Amendment rights by blocking Lindke.  The United States District Court for the Eastern District of Michigan held that Freed operated his Facebook page in his private capacity and thus did not act on behalf of the city when blocking Lindke.  The Sixth Circuit affirmed.

In reaching that decision, the Sixth Circuit applied principals of the “state-official test” – i.e., “social-media activity may be state action when it (1) is part of an officeholder’s ‘actual or apparent dut[ies],’ or (2) couldn’t happen in the same way ‘without the authority of [the] office.’”  Lindke v. Freed, 37 F.4^th 1199, 1202-03 (6^th Cir. 2022) (quoting Waters v. City of Morristown, 242 F.3d 353, 359 (6^th Cir. 2001)).  Applying that test, the Sixth Circuit recognized that (1) Freed was not compelled by state law, ordinance, or regulation to operate the page; (2) Freed created the page prior to becoming the city manager and there was no indication that the next city manager would take over the page; and (3) Freed did not rely on government employees to manage the page.

The Court vacated the Sixth Circuit’s decision and remanded the case to the lower court to apply the two-part test articulated above, rather than the “state-official test.”

Ninth Circuit. In Garnier v. O’Connor-Ratcliff, 41 F.4^th 1158, 1169 (9^th Cir. 2022), Michelle O’Connor-Ratcliff and T.J. Zane established social media pages while running for school board.  Both O’Connor-Ratcliff and Zane allowed members of the public to comment on their posts about their campaigns.  When they won their respective seats, both O’Connor-Ratcliff and Zane continued to use those pages to post content related to school board matters (e.g., meeting recaps, public safety updates, and the superintendent hiring process).  In addition, they used their pages to solicit feedback from the public.  Each page also listed them as “Government Official[s].”

When Christopher and Kimberly Garnier (parents of students in the school district) began frequently posting lengthy and repetitive comments on the social media pages, O’Connor-Ratcliff and Zane first deleted those comments and later blocked the Garniers.

The Garniers sued O’Connor-Ratcliff and Zane under 42 U.S.C. § 1983, alleging that they violated the Garniers’ First Amendment rights.  The United States District Court for the Southern District of California held that O’Connor-Ratcliff and Zane acted on behalf of the school board when they blocked the Garniers and violated the Garniers’ First Amendment rights.  The Ninth Circuit affirmed.

In reaching that decision, the Ninth Circuit applied the “nexus test,” which is “applicable when there is ‘such a close nexus between the State and the challenged action that the seemingly private behavior may be fairly treated as that of the State itself.’”  Garnier v. O’Connor-Ratcliff, 41 F.4^th 1158, 1169 (9^th Cir. 2022) (quoting Brentwood Acad. V. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2021)).  Applying that test, the Ninth Circuit recognized that (1) the board members clearly identified themselves as public officials on their pages (e.g., they called themselves “Government Official[s]”) and focused their posts on providing information to the public; (2) their pages encouraged constituents to provide input, attend meetings, fill out school surveys, and volunteer for committees; and (3) they used their pages to communicate with constituents about matters directly related to the board members’ duties.  Id. at 1171.

The Court vacated the Ninth Circuit’s decision and remanded the case to the lower court to apply the two-part test articulated above, rather than the “nexus test.”

U.S. Supreme Court Decision

In Lindke, the Court recognized that “[t]he 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.”  Lindke, No. 22-611, 2024 WL 1120880, *6.  The Court explained that “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.”  Id.

The Court identified that “[t]he appearance and function of the social-media activity are relevant at the second step [i.e., whether the official “purported to exercise that authority when speaking”], but they cannot make up for a lack of state authority at the first.”  Id. at *7.

With respect to the first part of the test, the Court stated that a public official’s conduct would not be attributable to the government unless the official had been given the authority to post government updates on topics within the public official’s responsibilities.  See id. at *7-8 (recognizing that “[t]he 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.”).

With respect to the second part of the test, the Court stated that “[i]f the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.”  Id. at *8.  To illustrate that point, the Court provided a hypothetical example of a school board president announcing the school’s pandemic restrictions at a school board meeting and then again at a barbecue with friends.  The Court distinguished between the two (2) announcements, calling the former “state action” and the latter “private action.”

The Court also suggested that if a public official clearly labeled their page as a personal account or offered a disclaimer that the views shared were the official’s alone, the public official “would be entitled to a heavy (though not irrefutable) presumption that all of the posts on [the] page were personal.”  Id. at *9.  On the other hand, if the account belonged to the government or was passed down to successor public officials, that context would weigh in favor of finding that the official purported to speak for the government.  With respect to Freed’s page, however, the Court recognized that “Freed’s page… was not designated either ‘personal’ or ‘official,’ raising the prospect that it was ‘mixed use’ – a place where he made some posts in his personal capacity and others in his capacity as city manager.”  Id.

Conclusion

By designing the two-part test, the Court sought to eliminate confusion about what test applies when determining whether a public official engaged in state action.  If a court determines that a public official did not engage in state action, the official’s conduct is said to be that of a private citizen who may block critics.  However, if a court determines that a public official did engage in state action, it remains unclear whether a court would then proceed to a forum analysis in assessing if the public official violated an individual’s First Amendment rights by blocking the individual’s comment.

Given that the Seventh Circuit, which has jurisdiction in Wisconsin, will be expected to apply the two-part test, Wisconsin public officials, including school board members, should be aware of the ruling in Lindke.  When an individual alleges that a public official violated the individual’s rights by deleting an individual comment, a court must focus on whether the specific post violates the two-part test.  But, when an individual alleges that a public official violated the individual’s rights by blocking the individual from commenting altogether, a court will have to look at whether the public official “engaged in state action with respect to any post on which [the individual] wished to comment.”  Id. at *10.

Because the test leaves open the possibility that a school board member could violate an individual’s First Amendment rights to comment on any post if the school board member were to block the individual from the school board member’s social media page, it is still advisable to remind school board members that unless they have been explicitly authorized to speak on behalf of the school board, they should indicate for the public on each and every post concerning school matters that those posts do not necessarily reflect the views of the school board or their fellow school board members.