in a opinion signed by Judge Amy Coney Barrett, the Supreme Court established a test to determine when a public official can be considered to be participating in a state action by blocking someone from their social media account. The official must have “(1) possessed actual authority to speak on behalf of the State on a particular matter, and (2) have purported to exercise that authority by speaking in the relevant social media posts.”
The court issued a unanimous decision in Lindke vs. released, a case over whether Port Huron, Michigan City Manager James Freed violated the First Amendment by blocking and deleting comments on his Facebook page from resident Kevin Lindke, who criticized Freed's pandemic policies. The test creates a new way to determine whether an official can be held responsible for violating a citizen's First Amendment rights through actions on his or her social media pages.
But it is not enough for a social media page to simply belong to a public official. Barrett wrote: “The distinction between private conduct and state action depends on substance, not labels: private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights, including the right of the First “Amends to talk about their jobs and exercise editorial control over speeches and speakers on their personal platforms.”
The distinction between private conduct and state action turns on substance, not labels.
Barrett suggested that simple disclaimers could make a difference in the determination. “Here, if Freed's account had carried a label, for example, 'this is the personal page of James R. Freed,' he would be entitled to a strong presumption that all of his posts were personal,” the ruling says, “but Freed's account page was designated neither 'personal' nor 'official.'”
Katie Fallow, senior staff attorney at Columbia University's Knight First Amendment Institute, said in a statement that the court was “right to hold that public officials cannot immunize themselves from First Amendment liability simply by using their personal accounts to conduct official business.”
But, Fallow added, “We are disappointed, however, that the Court did not adopt the more practical test used by most appellate courts, which appropriately balanced the free speech interests of public officials with those of People who want talk to them on their social media accounts. We hope that by implementing the new test developed today by the Supreme Court, the courts will be aware of the importance of protecting speech and dissent in these digital public forums.”
The Knight Institute challenged former President Donald Trump in 2017 for blocking users from his @realDonaldTrump Twitter account. They argued that their account was a “public forum” where people could not be excluded for their opinions, and lower courts agreed. In 2021, with Trump no longer in office, the Supreme Court ordered the lower court to overturn a ruling against Trump and dismiss it as debatable.
Gary Lawkowski, a partner at Dhillon Law Group, said in an emailed statement about the new ruling that “the biggest impact of this opinion may not be the formal test set forth in its holding, but rather its language buried in the opinion that “effectively creates a safe harbor for public officials who place disclaimers on their social media accounts, providing an easy way for public officials to stay on the ‘personal’ side of the law in the future.”
The judges vacated the case and returned the case to the lower court.
