In a rare unanimous decision on a matter of substantial public interest, the U.S. Supreme Court pronounced factors to determine when a public official’s personal social media account constitutes state action under 42 U.S.C. § 1983. In Lindke v. Freed, city manager James Freed occasionally posted about city-related topics on his personal Facebook page, although he posted “prolifically (and primarily) about his personal life.” The plaintiff, Kevin Lindke, posted comments critical of city government on Freed’s page and sued over Freed’s deletion of those comments and blocking Lindke’s access to his page, claiming that deletion was a violation of Lindke’s First Amendment right of free speech. On these facts, the Court took on an important question affecting personal social media pages of local government officials: when does a government official act as the state when posting or removing posts on social media? Because Section 1983 and the First Amendment require state action for liability, this distinction between state and personal action is critical.
Examining the myriad ways in which state action and personal action intermingle on social media, the Court held that a public official’s social media activity is attributable as state action “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.” Mr. Freed’s Facebook page was established years before he was appointed to a government position, it contained numerous postings and pictures of his family life, yet his profile photo showed him wearing the city lapel pin. He included his job in his description of himself and converted his page to a public page that anyone could see and comment on. He responded to questions about city business. In determining whether Freed had actual authority to speak on the city’s behalf, the Court indicated that one should consider whether the topic discussed was within the official’s authority either by law or by longstanding custom. For example, if he posted about health inspections of restaurants and deleted comments about that posting, if health inspections were not within the official’s remit, his posting could not be state authority.
Once one settles on whether the official had actual authority over the matter in question, then one must determine if he purported to exercise that authority in his posting. Here the question is whether he is using the posting to fulfill his official job responsibilities. Freed’s page, including answering questions of constituents and describing official COVID policy, appeared to have a mix of some posts made in his personal capacity and others made in his capacity as city manager. The analysis is muddied by the fact that public officials have their own First Amendment right to comment on matters of public interest. One suggestion? “Had Freed’s account carried a label (e.g., ‘this is the personal page of James R. Freed’) or a disclaimer (e.g., ‘the views expressed are strictly my own’), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.”
It is worth noting what the Court did not include in its analysis. It was not dispositive that no city resources or employees were used to maintain the page. State action was not defeated merely because the page was not linked to a city website nor was the page linked to the office, rather than the individual officeholder. Context matters. The Court noted that a city official could inform the public of a new ordinance at an official meeting and thus engage in state action yet share the same ordinance at a private barbecue and be acting only in his private capacity.
After establishing these pertinent factors for determining state vs. non-state action, the Court vacated the decision of the Sixth Circuit and remanded the case for further consideration. It also issued a warning – deleting a post may be less problematic than blocking access on a page-wide basis. If a municipal official is intermingling personal posts with posts in furtherance of the official’s job responsibilities, blocking access to the page raises the risk of liability for preventing public comment on official speech.
