The United States Supreme Court recently issued a decision involving the social media presence of local government officials and established a new test for determining when a public official’s use of social media constitutes “state action” in situations where an account contains a mix of both public and private posts by the official.
In Lindke v. Freed, the Court considered a Section 1983 claim filed against the city manager of Port Huron, Michigan, after the city manager first deleted negative comments that had been left on his personal Facebook page and then blocked that individual from posting any future comments. Because the city manager used his personal Facebook page to also post about official city business, the case turned on whether the specific posts on which the comments had been left were state actions or not.
Rejecting tests that relied solely on the appearance of authority of the account or the post at issue, a unanimous Court held that a public official’s use of social media (posting/deleting comments, or blocking commenters) constitutes “state action” only when the official (1) has actual authority to speak on behalf of the government entity about the subject of the post, and (2) purports to exercise that authority through their social media activities – regardless of whether the post was made on a personal account or an official one. While the appearance of the post at issue may have bearing on the second prong of this test, the first prong acknowledges that, as a threshold matter, the conduct must be actually attributable to the government in the first place.
Local governments should continue to work to develop and maintain social media policies that encourage the separation of personal accounts from official government accounts. However, the test announced in Freed recognizes that even though an individual’s public service may become inexorably entwined with their private life, they still maintain their individual rights to free speech under the First Amendment – so long as they avoid discussing matters over which they have actual authority, in their official capacity.
