SCOTUS: Blocking and Deleting Posts on Individual Social Media Accounts May Trigger First Amendment

Many public officials, including school board members and administrators, maintain an active social media presence in their individual capacities. On March 15, 2024, the U.S. Supreme Court ruled in a unanimous opinion that a government official’s “comments” and “likes” on their personal social media account may constitute state action and implicate the First Amendment. Lindke v Freed, 601 US __ (2024).  

James Freed converted his private Facebook page to a public figure “page,” which is a feature available to users who reach the platform’s 5,000 friend limit. Freed was later appointed Port Huron (Michigan) city manager. His Facebook public figure page contained both personal and professional updates, including policies and directives he initiated as city manager.

Kevin Lindke posted on Freed’s Facebook page critical comments of Freed’s actions as city manager in response to the COVID-19 pandemic. Freed deleted some of Lindke’s comments and eventually blocked Lindke from his Facebook page. Lindke sued, alleging that Freed violated his First Amendment rights by discriminating against him based on his viewpoint and by limiting his ability to comment in a public forum.

To prevail Lindke had to show that Freed was acting in his capacity as a government official, not in his personal capacity, when he engaged in the alleged misconduct. Both the trial court and the Sixth Circuit Court of Appeals ruled for Freed, finding that he did not violate the First Amendment because he acted as a private citizen when managing his Facebook page. Lindke appealed.

In a unanimous decision, the Supreme Court created the following test to determine when a public official’s social media speech constitutes government action: did the official (1) possess actual authority to speak on the government’s behalf, and (2) purport to exercise that authority when speaking on social media? For a government official’s speech to be “official,” he or she must have both the legal authority or responsibility to discuss an issue through a public forum and discuss it in a way demonstrating that authority. 

The Supreme Court remanded the case to the Sixth Circuit Court of Appeals to determine if Freed’s social media conduct violated the First Amendment under the new state-action test. Freed’s mixed-use of his Facebook page, for both personal and public matters, created a hard-to-classify context that the Court believed could be better determined through a fact-specific review by the lower court. The Court also noted that Freed’s blocking of Lindke operated on a page-wide basis, which prevented Lindke from commenting on any post, leaving the court to consider whether Freed had engaged in state action related to any post on which Lindke wished to comment but could not due to being blocked.

Determining whether a public official’s social media conduct implicates the First Amendment is fact intensive. Officials may take action to limit their First Amendment liability on social media. As the Supreme Court explained, 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 have been entitled to a heavy (though not rebuttable) presumption that all of his posts were personal. Those markers give the speech a clear context.

Public officials can also limit liability by avoiding Freed’s mixed-bag social media use of both personal and governmental topics. Instead of posting school-related content on personal social media pages, use personal pages for private matters and share school-related content on approved public forums.