The U.S. Supreme Court released two decisions on March 15, 2024, resolving the split among the Circuits on the issue of identifying state action in the context of social media use by public officials. The first decision was unanimous (9-0) and authored by Justice Coney Barrett. The second was issued as a brief, 3-page per curiam opinion. Both decisions simply remand the underlying matters to the lower courts for substantive decisions based on a clarified framework for determining state action.
The Lindke Decision
On March 15, 2024, the U.S. Supreme Court issued an opinion in Lindke v. Freed, No. 22-611, addressing the question of whether a public official can block a viewer from commenting on his social media page when that page includes both public and private posts. The Court found that the public official in so doing, engages in state action under 42 U.S.C. § 1983 if he (1) possessed actual authority to speak on the state’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the social media posts at issue.
Facts & Procedural History
In or before 2008, James Freed created a “private” Facebook profile. Freed later converted same to a public “page,” meaning that anyone could view and comment on his posts. In 2014, along with his status as a father and husband, Freed updated his page to reflect his appointment as the “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed posted on his page often, with its content largely about his personal life. He did, however, also post information related to his job and solicited feedback from the public on certain issues. Freed often responded to comments on his posts, but deleted others that he deemed “derogatory” or “stupid.”
With the onset of the COVID-19 pandemic, Freed posted related content on his page and included both personal content and that related to his job. Kevin Lindke, a fellow Facebook user, commented on Freed’s posts and included strong criticism of the city’s approach to the pandemic. Freed initially deleted Lindke’s comments, but later blocked him from commenting entirely.
Lindke sued Freed under 42 U.S.C. § 1983, alleging that Freed violated his First Amendment rights by restricting his ability to comment on the Facebook page which, according to Lindke, was a public forum. The District Court granted summary judgment for Freed, finding that he was not operating the page pursuant to his official duties and, as such, was not acting “under color of law” for purposes of 42 U.S.C. § 1983. The Sixth Circuit affirmed, and Lindke appealed to the U.S. Supreme Court.
Holding & Analysis
In a unanimous decision, the Court vacated and remanded the matter in order that the Sixth Circuit revisit it using the test set forth below.
Justice Barrett wrote the Court’s opinion, noting that Freed’s status or label as a public official was not determinative. As stated:
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. Here, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own.
In short, state officials can permissibly block a constituent from their social media pages if they are not claiming to speak on the state’s behalf, and are not speaking on an area within their official authority.
The inquiry is fact-intensive, and courts must utilize the following test: (step 1) whether the official has authority to speak on the state’s behalf; and (step 2) if the official purported to use that authority in writing a post. For the purposes of the latter, the “appearance and function of the social media account are relevant.” If steps 1 & 2 are satisfied, an official engages in state action and cannot block a person, even if that action is being done to prevent that individual from commenting on the personal posts on the page.
Given that the Sixth Circuit did not apply this standard, the Court remanded the matter. The inquiry must go beyond a focus on Freed’s position. It must be determined whether Freed possessed state authority and whether there is a tie between his authority and the gravamen of Lindke’s complaint.
The Garnier Decision
In Garnier v. O’Connor-Ratcliff, No. 22-324, two school board members in California blocked parents on social media. The Ninth Circuit had found that in so doing, the board members acted “under color of state law.” Given the new test set forth above, however, the U.S. Supreme Court vacated the ruling of the Ninth Circuit and remanded the matter for further proceedings consistent with the Lindke opinion.
Michelle O’Connor-Ratcliff and T.J. Zane are two individuals who maintained personal Facebook pages for sharing with friends and family. In 2014, however, they also created public Facebook pages in order to promote their campaigns for election to the Poway Unified School District (PUSD) Board of Trustees. Upon winning the election, the new Trustees maintained those public pages to post PUSD-related content, solicit feedback and communicate with constituents. The profile for each page describes O-Connor-Ratcliff and Zane as a “Government Official” respectively, and notes their official positions. In addition to Facebook, O-Connor-Ratcliff created a public Twitter page which she used in a similar manner.
Christopher and Kimberly Garnier are parents of children attending PUSD schools. Often critical of the Board of Trustees, they began posting lengthy and repetitive comments on the accounts of O-Connor-Ratcliff and Zane.[1] O-Connor-Ratcliff and Zane initially deleted the comments but later blocked the Garniers from commenting altogether. The Garniers sued O-Connor-Ratcliff and Zane under 42 U. S. C. §1983, seeking damages and declaratory and injunctive relief for the alleged violation of their First Amendment rights.
Before the District Court, O-Connor-Ratcliff and Zane moved for summary judgment. The District Court granted them qualified immunity on the damages claims. The District Court, however, found that O-Connor-Ratcliff and Zane acted “under color of” state law when they blocked the Garniers and, as such, allowed the case to proceed on the merits. The Ninth Circuit affirmed, holding that §1983’s state action requirement was satisfied because there was a “close nexus between the use by O-Connor-Ratcliff and Zane of their social media pages and their official positions.”
Relying on precedent, the Ninth Circuit opined that an off-duty state employee acts under color of law if she (1) purports to or pretends to act under color of law; (2) her pretense of acting in the performance of her duties had the purpose and effect of influencing the behavior of others; and (3) the harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental status or to the performance of her duties.
The U.S. Supreme Court notes that the above framework premises state action largely on the official “appearance and content” of the social media pages at issue. Because this approach differs from the test set forth in Lindke, the Court vacated the decision of the Ninth Circuit and remanded the case for further proceedings consistent with the Lindke decision.
Conclusion
The above decisions are a welcome clarification by the U.S. Supreme Court on the identification of state action in the context of social media use by public officials. It should be underscored that the inquiry is fact-intensive as individuals tend to intermingle public and private social media profiles. Public officials vested with authority should be strongly cautioned to disclaim when posting on social media as well as avoid any appearance of speaking on behalf of a board or posting regarding board business.
[1] By way of example, the Court notes that the Garniers made nearly identical comments on 42 separate posts on O’Connor-Ratcliff ’s Facebook page and 226 identical replies within a 10-minute span to every tweet on her Twitter feed.
This Alert provides information about the current developments in New Jersey education law. It is necessarily general and not intended as legal advice or a substitute for legal advice. . Questions about individual issues should be addressed to Athina Lekas Cornell at acornell@cmmolaw.com of Cornell, Merlino & Osborne, LLC