Supreme Court Sets Social Media Standards For Public Officials
On Friday, March 15, in Lindke v Freed, the Supreme Court of the United States outlined a standard for how, and when, public officials can regulate their own social media. In Lindke, a Michigan city manager converted their personal Facebook page to a public page, meaning that anyone could see and comment on his posts. The city manager continued to operate the Facebook page himself and regularly posted about his personal life. The city manager also posted information related to his job, and often responded to comments on his posts, including those left by city residents with inquiries about community matters, and occasionally deleted comments that he considered “derogatory” or “stupid.” After the COVID-19 pandemic began, the city manager posted information related to the city’s response, and a member of the public commented, expressing unhappiness with the city’s approach to the pandemic. Initially, the city manager deleted the posts, and ultimately blocked the poster from commenting at all.
A unanimous court held that public officials, like the city manager, can only be sued for First Amendment violations if the official 1) possessed actual authority to speak on the State’s behalf, and; 2) purported to exercise that authority when they spoke on social media. In reaching this conclusion, the Court cautioned that the appearance and function of social-media activity are relevant, if state authority has been delegated to the public official. In conducting this analysis, court found the public official must have “actual authority rooted in written law or longstanding custom to speak for the State.”
Turning to the next part of the analysis, a public official purports to speak on behalf of the state while speaking in their official capacity or when fulfilling their responsibilities pursuant to state law. The court shared that if the public official’s personal account carried a label or disclaimer, the official “would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” On the other hand, an account belonging to a political subdivision (@SchoolDistrict) or is passed down to whomever occupies a particular office (like @DistrictSup or @HSPrincipal) can make clear that the account purports to speak for the government.
The Court cautioned that mixed-use social media, like the social media use found in this case, is fact intensive. And the scope of review may depend on the alleged state action – for example, a single deleted comment requires a narrower analysis compared to the blanket ban of a user.
The immediate take away from the decision is that public officials, like Superintendents and school administrators, will be given some deference when acting as private citizens on their own social media. But when a public official possesses authority to speak on the State’s behalf, and purports to exercise that authority – whether explicitly or implicitly – the First Amendment will restrict their authority to regulate commenters and posters.