Earlier this month, the Supreme Court considered whether James Freed, a city manager who maintained a “mixed use” Facebook account on which he posted information about his personal life and his job, violated the First Amendment and was subject to liability under 42 U.S.C. § 1983 (“Section 1983”) when he deleted comments with which he disagreed and eventually blocked a member of the public from commenting on his Facebook posts at all.  A unanimous Court held that a public official who posts about job-related issues on his social media page engages in state action (and can be held liable under Section 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.” 

Background of the Case 

Years before becoming a public official, Freed created a Facebook profile that he shared only with “friends,” later converting his account to a public page that anyone could view and comment upon.  When he was appointed city manager, he updated his account to reflect his new position and provide a link to the city’s website and general email address.  He also included the following description:

Daddy to Lucy, Husband to Jessie and City Manager, 
Chief Administrative Officer for the citizens of Port Huron, MI

Freed managed his Facebook account and posted often about his family and personal interests.  He also shared information about his job and, at times, solicited input from the public.  Many times, people commented on his posts, and he occasionally deleted those he found “derogatory” or “stupid.”  After one individual, Kevin Lindke, posted comments critical of the city’s handling of the pandemic, Freed initially deleted his posts and later blocked Lindke from commenting on his page at all. 

Legal Claim

Pursuant to Section 1983, an individual can bring an action against a person who, “under color of any statute, ordinance, regulation, custom, or usage, of any State,” deprives them of a federal constitutional or statutory right.  As such, the law protects against unlawful actions that can be attributed to the State, not to private individuals.

Lindke brought suit under Section 1983, alleging that Freed violated his First Amendment rights by deleting unfavorable comments and blocking him from posting, thereby engaging in illegal viewpoint discrimination. 

In reviewing Lindke’s claim, the district court found that Freed was not liable because Freed managed his social media page in his private capacity, and therefore his actions did not constitute the requisite state action needed for Section 1983 liability.  The Sixth Circuit affirmed.

Supreme Court Analysis

In Lindke v. Freed, the Supreme Court noted that, in some cases – including when actions by public schools are at issue – state action is “easy to spot.”  In other situations, the line between state and private action is harder to discern.  As the Court noted: “While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.”  The question of whether particular speech or conduct is private action or state action depends not on an individual’s status as a public employee, but on the substance of the speech or conduct. 

Turning to the context of social media, the Supreme Court acknowledged that the line between personal and official action can be a fine one, requiring fact-specific analysis of the platform and how it is being utilized by a public official.  The Court held that a public official who speaks about job-related issues on the official’s “mixed-use” social media page engages in state action for the purposes of Section 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.”  The decision provides analysis regarding what factors are necessary to meet each of these prongs.

In the case at bar, Freed’s page contained no disclaimer indicating that it is a personal page, in which case there would have been a “heavy (though not irrefutable) presumption” that the posts were personal and not official.  At the same time, there was no clear indication that it was an official page, either.  As such, the purpose of the page was unclear, “raising the prospect that it was ‘mixed use.’”  In such instance, the Court explained that determining whether the posts (and responses to the comments) were official state action required a fact-specific analysis.  What did the posts say?  What were they meant to do?  Did the announcement appear to be an official communication, or was it available elsewhere and simply re-shared or re-posted?  Exploring these (and similar) questions will help courts decide whether an official is engaging in private action or state action. 

The Court also made an important note about how technology may affect the above analysis, particularly when the challenged actions are twofold: deleting particular comments and blocking an individual from commenting on a social media page at all.  When examining whether an official engaged in state action when deleting comments, the only relevant posts are those to which the comments responded.  As to blocking, if the social media page’s blocking mechanism applies to the entire page, then the relevant analysis focuses on whether there was state action with respect to any post about which a member of the public wished to comment.  

In this case, the Court did not ultimately determine whether Freed engaged in state action but instead remanded the case to the Sixth Circuit for further proceedings consistent with its opinion.

Takeaways

Lindke v. Freed illustrates the evolving legal landscape regarding state action and First Amendment jurisprudence in the social media context.  Some important takeaways for public officials are as follows:

• Public officials should be aware that their posts on unofficial social media pages could be considered “mixed use” for both personal and state action.
• If a public official maintains a personal social media account, to avoid a finding of state action, the official should label the account as a personal page and/or include a disclaimer that the views expressed are the individual’s personal view.
• To avoid a finding of state action on their personal pages, public officials should take care not to post anything that could be interpreted as an official action, attributable to the government.
• Public officials should understand the risk of liability in certain circumstances associated with deleting particular comments from, and blocking an individual from commenting on, their social media page. 
• Public agencies and boards may wish to review their policies and bylaws to clarify the circumstances, if any, in which agency officials have authority to speak on behalf of the agency.