Social Media, the First Amendment, and Public Officials: Supreme Court Weighs In

March 26, 2024

Illustration - Social Media

The March 15, 2024, Supreme Court decision in the case of Lindke v. Freed has significant implications for city officials regarding their use of social media and its relation to the First Amendment. In this case, the Court established a clear test for determining when local government officials are considered "state actors" for First Amendment purposes when posting on social media platforms.

The case involved a city manager, James Freed, who utilized his personal Facebook account to discuss both personal matters and city-related issues, including the city’s COVID-19 policies. Mr. Freed was sued after he deleted comments and blocked someone from his account.

The Court's Decision
The Court's unanimous decision emphasized that for social media activity to be considered state action, simply discussing public business does not automatically transform personal accounts into public forums. The Court rejected subjective tests previously used by lower courts and established a two-pronged approach:

  • first, whether the official possessed actual authority to speak on behalf of the government, and
  • second, whether they exercised that authority in their social media posts.

Key Points
The burden of proof lies on the plaintiff to demonstrate that the official was purporting to exercise state authority in specific posts. A recent National League of Cities write-up on this case explained this idea further:

“For example, if Mr. Freed had no authority over public health and he was posting about local restaurants with health-code violations and deleted unwanted comments on those posts, he would not be acting with any state authority and would not violate the First Amendment…if the official is merely sharing information that is otherwise publicly available, it is far less likely to be state action.”

Additionally, the Court noted that while labels and disclaimers on social media pages may provide a presumption of personal speech, they cannot excuse government actions conducted through personal accounts. The distinction between personal and official capacity is crucial, with substance taking precedence over labels. Said Justice Amy Coney Barrett in her opinion:

“The 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 – including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms.”

Implications for Officials
It is important for officials to maintain a clear distinction between personal and official social media use to uphold constitutional principles in the digital age. As Justice Barrett stated in concluding her opinion:

“A public official who fails to keep personal posts in a clearly designated personal account … exposes himself to greater potential liability.”

This ruling offers clarity to city officials, allowing them to navigate social media usage while safeguarding both individual rights and governmental authority.

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