by Chris Gilbert, Thompson &Horton LLP

The extent to which government officials may delete posts to their social media accounts that they don’t like (for whatever reason), or even ban users from the account altogether due to the user’s online behavior, is a hot topic at all levels of government.  In 2019, the Second Circuit ruled that then-President Trump violated the First Amendment by blocking people from his official Twitter account (Knight First Amendment Institute at Columbia Univ. v. Trump).  While there is probably a general consensus among courts that the government itself cannot delete posts from its official entity account that it does not like because the posts are offensive, inappropriate, negative, or critical of the government entity, the question becomes murkier when the social media account belongs to an individual government official, and particularly when the account predated that official’s government service or employment.  The Knight FAI Court acknowledged that “not every social media account operated by a public official is a government account.”  928 F.3d at 236.  But the Supreme Court declined to hear President Trump’s appeal, and until now the Court has not taken the opportunity to provide needed guidance on this thorny issue.

However, in April 2023, the Court granted certiorari in two cases that reached dramatically different results at the circuit court level:  Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), which involved a city manager and ruled that the posts could be deleted, and Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022), which involved school board members and ruled that the posts could not be deleted.  Both cases involved Facebook pages that were created before the person at issue was hired  by or elected to the government entity, but which the official eventually started using to communicate information to the public about activities at the government entity.  In both cases a disgruntled citizen began posting comments on the Facebook page which the official did not like (in Lindke, it was about the city manager’s handling of the Covid-19 pandemic, and in Garnier, it was about racial issues in the school district and possibly corruption by the superintendent), so the official initially deleted various comments, and then blocked the citizen altogether.  Both the city manager and the school board trustees argued that they could block comments because they maintained their Facebook pages in their personal capacities.  So why the two different results?

Lindke, which ruled that the city manager could delete posts and block users, focused on how the social media page was set up, and the city manager’s official authority (or ultimately lack thereof) for creating it.  In determining that the city manager did not engage in state action in blocking his Covid critic, the Sixth Circuit focused on these factors:

• whether the text of state law requires an officeholder to maintain a social media account;
• whether state resources are used to run the social media account;
• whether the social media account “arise[s] from the use of state authority”, i.e. whether the account belongs to the government office, rather than the individual office holder; and
• whether state staff are used to set up and run the account.

Because the answer to these questions was “No,” the Court held that the Facebook page did not involve state action.  The Court rejected the argument that using the page to communicate with the public about official business, or the appearance of the Facebook page (it featured the city manager’s official city address, email and website, along with a profile picture of him wearing his city manager pin), were enough to transform a private Facebook page into an official one.  In so ruling, the Sixth Circuit acknowledged that “we part ways with other circuits’ approach to state action in this novel circumstance.  Instead of examining a page’s appearance or purpose, we focus on the actor’s official duties and use of government resources or state employees” – a direct reference to the Knight FAI decision.  And so the Court concluded:

James Freed didn’t transform his personal Facebook page into official action by posting about his job. Instead, his page remains personal—and can’t give rise to section 1983 liability.

Garnier, which ruled that school board trustees could not delete posts and block users, focused less on how the social media pages (Garnier also involved a Twitter page) were set up, and more on how the trustees used their pages. Although originally campaign pages, the newly-elected trustees started using them to report on school district business, promote the achievements of teachers and students, discuss the termination of the superintendent, invite members of the public to fill out surveys and attend community fora, and alert the pubic to safety and security issues at schools. A husband and wife who had been vocal critics of the school board started posting lengthy and often repetitive comments about alleged wrongdoing by the superintendent and race relations at the district.  Frustrated with the repetitive nature of their comments, the trustees first deleted them, then blocked the Garniers altogether.

Although the Ninth Circuit looked at many of the same factors as the Sixth Circuit, it focused more on how the trustees used their pages, and described the test as “whether the public official’s conduct, even if ‘seemingly private,’ is sufficiently related to the performance of his or her official duties to create ‘a close nexus between the State and the challenged action,’ or whether the public official is instead ‘pursu[ing] private goals via private actions’.”  In determining that the trustees were acting under color of state law when blocking the Garniers, the Ninth Circuit focused on the following factors:

• the trustees purported to act in the performance of their official duties through the use of their social media pages, in that (i) the content of the pages was overwhelming geared towards providing information to the public about the board’s official activities and soliciting input from the public on policy issues relevant to board decisions, and (ii) through appearance and content, the trustees held their social media pages out to be official channels of communication with the public about the work of the school board;
• the trustees’ presentation of their social media pages as official outlets facilitating communications about the school district “had the purpose and effect of influencing the behavior of others”; and
• the trustees’ management of their social media pages related in some meaningful way to their governmental status and to the performance of their duties.

The Court noted that the blocking of the Garniers from the pages was linked to events that arose out of the trustees’ official status. For states where this issue is relevant, the Court also rejected the argument that the use of social media had to be private because a school board member can only act as part of a quorum at a properly-convened board meeting, calling such an argument “unconvincing.”

After concluding that blocking the Garniers was state action, the Court then turned to the question of whether it also violated the First Amendment (a question that the Sixth Circuit did not need to reach in Lindke).  After analyzing the actual use of the pages, including the fact that the pages were used to engage in two-way communications with the public and that formal rules of decorum or etiquette (that might have prohibited repetitive comments) were never adopted, the Court concluded that the pages were designated public fora.

The Court questioned whether blocking the Garniers was a reasonable time, place and manner restriction, because “the Trustees’ contention that the Garniers’ comments ‘fill[ed] up the page’ and detracted from the ‘streamlined, bulletin board nature’ of their accounts is inconsistent with the technological reality.”  As the Court noted, Facebook truncates lengthy posts, and Twitter does not show replies unless the viewer opens the post, so visitors to the trustees’ pages would be able to scroll through and read the trustees’ posts, without being bothered overly much by the Garniers’ lengthy comments.  So blocking the Garniers was not narrowly tailored to serve a significant government interest, because “there is no evidence that the repetitive comments actually disturbed or impeded the Trustees’ posts or prevented other viewers of the Trustees’ accounts from engaging in discussion.”

The Court also held that the trustees’ decision to block the Garniers altogether was not narrowly tailored, because it burdened substantially more speech than was necessary.  If spamming was the real concern, the trustees could always delete or hide any unduly repetitive comments.  And once the trustees started using a Facebook word filter feature that effectively made it impossible for anyone to leave comments on their posts, continuing to block the Garniers completely “serves no purpose at all relating to the Garnier’ repetitive comments.”  So the Court determined that blocking the Garniers violated the First Amendment.

One of the main reasons that the Supreme Court agrees to hear appeals is when a split exists in the circuit courts, and here the split could not be clearer:  while the Sixth Circuit and the Ninth Circuit  both agreed that state action is established through some sort of nexus test, they disagreed as to whether you establish that nexus by looking at the creation of and authority for the social media page (Lindke), or the use of the page (Garnier).  Lindke noted that it was “parting ways” with the majority of previous cases (including Knight FAI), and Garnier specifically rejected Lindke.  So the Court now has the perfect opportunity to set out the boundaries for when and how government officials van manage their own social media pages.

Briefing in both cases (which are consolidated at the Supreme Court) will take place over the summer, with oral argument expected in the fall or early spring, so we should have a decision by the end of the 2023-2024 term on this cutting edge issue.