The U.S. Supreme Court Speaks: Blocking Users from Commenting on Public Official’s Social Media Account Violates The First Amendment… Maybe

by José de la Fuente

Does a public official’s act of blocking certain individuals/members of the public from commenting on an official’s social media account violate the First Amendment rights of that member of the public? The United States Supreme Court recently answered that question in its March 15, 2024 opinion in Lindke v. Freed, 144 S. Ct. 756 (2024) with a standard that amounts to maybe yes, maybe no, it depends on the facts and circumstances. While that general answer may not seem helpful, the Court provided some helpful standards for public officials to consider in how they manage their social media accounts.

The short version of the standard is that a public official who prevents someone from commenting on their social media page engages in state action (that is, something that can give rise to liability for a civil rights violation pursuant to 42 U.S.C. § 1983) only if the official both 1) possessed the actual authority to speak on the government’s behalf on a particular matter, and 2) purported to exercise that authority when speaking in the relevant social media posts. As many public officials have mixed-purpose public social media pages that they use for both clearly personal communications (“Here’s my family’s favorite 4th of July barbecue recipes!”) and government communications (“Official advisory to all citizens: the City has closed Elm Street to all traffic until further notice due to a SWAT situation”), determining the nature of a page and/or communication can be a fact-intensive inquiry.

Lindke involved the case of the city manager of Port Huron, Michigan, James Freed. Mr. Freed had a “public” Facebook profile that he used to post information about both his personal life and information related to his job. A particular Facebook user, Mr. Lindke made multiple disparaging comments on Freed’s page in response to posts about the COVID 19 pandemic, and Freed eventually blocked Lindke from posting comments on his page altogether. Lindke challenged the act of blocking him as a violation of his First Amendment rights by Freed, who Lindke contended was acting in his official capacity.

The Court observed the challenge this question poses with respect to local officials:

The question is difficult, especially in a case involving a state or local official who routinely interacts with the public. Such officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But the state-action doctrine avoids such broad-brush assumptions—for good reason. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.

The pivot point of the Court’s test is the following standard:

Freed’s conduct is not attributable to the State unless he was “possessed of state authority” to post city updates and register citizen concerns. . . . The alleged censorship must be connected to speech on a matter within Freed’s bailiwick.

Applying this standard, the Court stated that:

[A] city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements. He would also have that authority even in the absence of written law if, for instance, prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager’s power to do so has become “permanent and well settled.”

The Court did observe a pathway to eliminating any confusion with respect to the social media accounts of public officials, essentially suggesting a policy governmental entities might want to enact relating to the social media accounts of its officials (to the extent that any such official has a social media presence that is not the voice of the entity itself):

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 . . . Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision (e.g., a “City of Port Huron” Facebook page) or is passed down to whomever occupies a particular office (e.g., an “@PHuronCityMgr” Instagram account).

Thus, it may be a best practice – and it might even rise to the level of something that should be made official policy of a governmental entity – that officials attach such a disclaimer to any of their social media accounts that are not official accounts of the entity itself.

Finally, the Court offers a helpful example of how to compare an official post with one that is more personal in nature, even if the subject matter is identical:

Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech “relate[d] to his public employment” or “concern[ing] information learned during that employment.”

There is also the matter of statements of members of a legislative body (e.g., city council members, board members, etc.), and how those might be affected. That scenario was not addressed by the Court because the official in that case was not a legislator, but the scenario should be considered for planning purposes. Generally, individual legislators are not legally empowered to speak on behalf of a governmental entity because the legislative body speaks only as a whole. Therefore, a legislator is much less likely to run afoul of this standard. However, if a legislator has some independent power, such as chairman of an official committee, it is possible that their statements about that committee could be deemed to be made in their official capacity; again, the potential for liability should be assessed based on the specific facts of each situation.

Ultimately, the court remanded the Lindke case for further factual inquiry, noting that the full “blocking” function of a particular poster/commenter from a social media page that might have mixed use (that is, some of its posts by the owner of the page might constitute state action) creates a risk of a First Amendment violation.

In light of the Lindke decision, public officials would be well-advised to keep their social media accounts separate the best they can (certain accounts being clearly labeled as personal accounts, and not used for any official government business, with any other “official” account(s) being for official purposes only).

That said, the standard pronounced by the Court understands that individuals, particularly the kind of individuals who choose to engage in public service and hold a public position, are likely to post on matters of public importance on their personal pages. So long as those statements are plainly statements of the individual, and/or are passing along already public information that is available elsewhere (e.g., a city manager re-posting an announcement of a road closure from a city’s official social media page, or a river authority’s general manager re-posting important river flow announcements from a river authority’s official page), then public officials can likely avoid liability. Government entities may wish to enact a specific policy to this effect, and likewise may wish to brief their officials on the substance and impact of Lindke so as to protect and respect the interests of officials and the public alike.

Joe de la Fuente is the Chair of the Firm’s Litigation, Appellate, and Business Services Practice Groups. If you would like additional information or have questions related to this article or other matters, please contact Joe at 512.322.5849 or jdelafuente@lglawfirm.com.