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Supreme Court Weighs in on First Amendment Rights on Social Media for Public Officials

On March 15th, 2024, the Supreme Court delivered decisions on two cases at the intersection of public officials’ social media accounts and community members’ First Amendment right to access those social media accounts.

In Lindke v. Freed, the plaintiff sued the city manager of Port Huron, Michigan, claiming that the city manager violated his First Amendment rights by blocking him from commenting on the city manager’s Facebook page. The city manager’s Facebook page clearly identified him as the city manager of Port Huron and included posts about various things going on in the city, but it also listed him as a father and husband and included many photos of his family and pet, etc. Following plaintiff’s critical comments about the city’s handling of the COVID-19 pandemic, the city manager deleted the plaintiff’s comments and then blocked him so he could no longer post comments in response to the city manager’s feed.

Similarly, in O’Connor-Ratcliff v. Garnier, two newly elected members of the Poway Unified School District used their Facebook pages for campaign and District-related communication, including board-meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates. The trustees deleted the comments and then blocked two parents who frequently criticized the board from commenting on their social media posts. The parents sued, claiming their First Amendment rights were violated. The Supreme Court wrestled with the difficult and fact-intensive question of whether and when the personal social media account of an individual citizen who happens to hold a governmental position becomes an official account, subject to the First Amendment. In a unanimous opinion, the Court determined that, for a plaintiff to claim a First Amendment violation in this context, they must demonstrate that the official’s actions are attributable to the state. The Court held that a public official’s social media speech is attributable to the state only if the official:

  1. possessed the actual authority to speak on the state’s behalf (i.e., only if “making official announcements is actually part of the job that the State entrusted the official to do”); and
  2. purported to exercise that authority when he or she spoke on social media (i.e., when speaking “in his [or her] official capacity” or “to fulfill his responsibilities pursuant to state law”)..

In both cases, the Supreme Court’s decision acknowledges the complexity of distinguishing between private conduct and state action in the digital age. The Court has provided essential guidance for navigating digital communication by clarifying the criteria under which a public official’s actions on social media can be considered state action subject to First Amendment constraints.

Contact Heather Brickman or Jeff Goelitz or any of our Board Governance attorneys with questions about the impact of this case.