In April 2023, the U.S. Supreme Court granted certiorari to a pair of cases dealing with the intersection of free speech, social media, and governmental liability.  Both cases deal with § 1983 actions against governmental officials in which it is alleged that those officials violated, inter alia, the plaintiffs’ First Amendment rights by limiting access to the officials’ public social media pages. Oral argument before the Supreme Court took place in October of last year.  It is my hope that review of both cases, the arguments set forth by the parties, and the lower courts’ holdings can provide some additional guidance to local government officials treading into the realm of social media and try to determine whether and when officials can be held liable for similar behavior in anticipation of the Court’s rulings. This article focuses on the first of the two cases, Lindke v. Freed, 37 F.4th 1199 (2022).

Facts

Lindke focuses on James Freed, the city manager for Port Huron, Michigan, who created a Facebook profile originally “to connect with friends and family.”  Thereafter, in 2014, Freed was appointed as city manager, and he updated his Facebook page to reflect that fact. Freed also listed the City’s website, general email, and the address for City Hall within his profile as the page’s contact information. Freed was an active user on his Facebook page, sharing both personal posts such as family photos as well as posts that dealt with administrative directives which he issued in his capacity as city manager. This included posts about policies he initiated for Port Huron and news articles on public health measures and statistics during the COVID-19 pandemic. This caught the attention of Kevin Lindke, who did not agree with Freed’s handling of the pandemic and who responded with criticism in the page’s comments section. Freed responded by deleting Lindke’s comments and blocking Lindke from further commentary on his page and posts. Lindke sued Freed under 42 U.S.C § 1983, arguing that Freed violated his First Amendment rights by deleting his comments and blocking him from the page. The district court granted summary judgment to Freed, which led to Lindke’s appeal.

“State Action” Requirement and Social Media Activity

On appeal, the Sixth Circuit was tasked with determining whether Mr. Freed’s social media activity in this instance constituted “state action” for purposes of Mr. Lindke’s § 1983 claim. As the Court made clear at the beginning of its analysis, a defendant must be acting in a state capacity to be liable under § 1983, and such a determination turns on whether that defendant’s actions are “taken in an official capacity” or “taken in a personal [capacity].” However, as the Court itself conceded, imprecision exists within the case law as to when a state official acts personally and when he acts officially, which is only exemplified in the setting of this matter: “the ever-changing world of social media.”

Despite the new context, the Court determined that the answer to the issue at hand (i.e., whether the official’s act is “fairly attributable” to the state) remains rooted in the principles of the state-official test. Per the Court: “Just like anything else a public official does, 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.’” With these criteria in mind, the Sixth Circuit determined that Mr. Freed’s Facebook activity did not constitute state action, as the page neither derived from the duties of his office nor depended upon his state authority. “In short,” the Court declared, “Freed operated his Facebook page in his personal capacity, not his official capacity.”

So, what factors led the Sixth Circuit to come to this conclusion?  First, as the Court noted, there was no state law, ordinance, or regulation that compelled Mr. Freed to operate his Facebook page as part of the “actual or apparent duties of his office.” Secondly, Mr. Freed’s page did not belong to the office of city manager: this Facebook page belonged to Mr. Freed before he took office and, per the Court, there is no reason to believe it will change hands if he leaves his post as city manager.  Lastly, Mr. Freed did not rely on government employees to maintain his Facebook page, nor was there any evidence that staffers were involved in preparing content for Freed’s use, or that staff ever posted on Freed’s behalf.

The Court rejected Mr. Lindke’s contention that it should examine the page’s appearance or purpose, rather than the actor’s official duties and use of government resources or employees.  In doing so, the Court noted that “Lindke’s focus on the page’s appearance seems akin to considering [a police officer’s appearance, and] whether an officer is on duty, wears his uniform, displays his badge, identifies himself as an officer, or attempts to arrest anyone.”  In the Court’s opinion, the comparison between these in-person police officer situations and Mr. Freed’s Facebook page “is shallow,” as Mr. Freed gains no authority by presenting himself as city manager on Facebook as opposed to a police officer, whose “appearance actually evokes state authority.”

Takeaway

In conclusion, the Freed Court noted that its decision to focus on the actor’s official duties and use of government resources or employees is not only “rooted in our circuit’s precedent on state action” but also “offer predictable application for state officials and district courts alike, bringing the clarity of bright lines to a real-world context that’s often blurry.” To that end, the Sixth Circuit has provided some guidance within the realm of social media: moving forward, it is important for government officials to determine the purpose, scope, and authority inherent to their respective social media pages prior to taking similar actions as Mr. Freed.  If a social media account is personal in nature, a government official’s actions on that page, such as blocking other users, would not necessarily be considered state action.  However, where the page is sufficiently linked toward that individual’s official duties, or if governmental funds or staff are utilized in the page’s maintenance, it is likely that the First Amendment could be invoked for purposes of an action against that individual and local government. Whether the Supreme Court adopts these criteria moving forward has yet to be seen.