Social Media Pages and Backyard Barbecues: the Supreme Court issues Lindke v. Freed

Last Friday, the Supreme Court issued its long-awaited decisions in Lindke v. Freed and O’Connor-Ratcliff v. Garnier, the two cases involving whether and when public officials can delete third party posts from their (arguably) personal social media pages, or block irksome visitors altogether.  Lindke involved a city manager (Freed) who blocked a COVID-critic, which the Sixth Circuit said was permissible.  O’Connor-Ratcliff focused on two school board trustees who the Ninth Circuit ruled violated the First Amendment by deleting posts and blocking critics on school-related issues.  For a fuller discussion of the backgrounds of these cases and the Court of Appeal decisions, check out my earlier blog.  Although the Supreme Court issued decisions in both cases, its short decision in O’Connor-Ratcliff more or less just says “See Lindke,” which was the longer decision with the substantive analysis.

In a unanimous decision, the Court in Lindke ruled that public officials may sometimes delete comments from their social media pages, even when their posts are related to their positions.  In the end, this was less of a First Amendment case and more of a “State Action” case, because all of the Justices appeared to agree that the First Amendment would only apply to a public official’s censorship of his social media page if he was speaking in some sort of official capacity, and not in his personal capacity.  (“Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen.”)

The difficult question, of course, is when is such speech public, and when is it private.  The good news is that the Supreme Court actually gave us a test this time, which they have recently not been prone to do in First Amendment cases (see Mahanoy), and the test is relatively specific, unlike the vague “history and traditions” test from Kennedy.  According to the Court, a public official who deletes comments or blocks viewers from his or her social media page only violates the First Amendment (by engaging in state action under Section 1983) if “the official both (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 relevant social-media posts.”

The bad news is that the first prong of this test is going to be very difficult to apply in everyday situations, particularly since the discussion of the “actual authority” prong is internally inconsistent.  The Court starts by noting that actual authority can come from things like statutes, ordinances, and regulations, which are all pretty easy to identify and interpret.  But then the Court also invokes “custom, and usage” – which as any Monell attorney can tell you is much harder to nail down.   The Court then notes that “if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit,” so it doesn’t matter whether “social media speech” is authorized.  The Court then goes one step further, and says that “[i]n some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially” – so it doesn’t even matter if the source of the authority mentions speaking about it (at least “in some cases”).

So there must be authority over a subject matter, but it doesn’t necessarily need to be written down (i.e. custom), nor does it explicitly need to be authority to speak, or authority to speak on social media.   Like pornography, I guess we will know the authority when we see it (Justice Potter Stewart, Jacobellis v. Ohio).

Here are some lessons that can be derived from Lindke:

  • Lindke applies to personal social media pages maintained by individual public officers or employees.  I don’t think anything in Lindke changes the rules on whether the government as an entity can delete comments or ban viewers from official entity social media pages.  (See, for example, Robinson v. Hunt County, Tex., 921 F.3d 440, 447 (5th Cir. 2019)).
  • The Court explicitly rejected the argument that government officials are “always on the clock.”  (“While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.”)
  • Social media accounts should carry a disclaimer or a label identifying the page as a personal page or an official page.  This, says the Court, will entitle the speaker “to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.”
  • The Court makes it clear that a personal social media page can have a mix of public comments and private comments, so courts will need to consider deletions on a post-by-post basis.  In other words, the proper focus is on each individual post and its related comments, and not on whether the entire page is a public or a private page.
  • To that same end, the Court stressed that to show authority, it is not enough that a government official has some authority to communicate generally with the community: “[t]he alleged censorship must be connected to speech on a matter within Freed’s bailiwick.”  Again, a post-by-post analysis as to whether the official had authority to make each specific post.
  • Schools officials should be very careful when blocking a visitor from their personal social media site altogether.  The Court noted that while deleting comments would only require a court to review those specific posts, completely blocking a visitor would violate the First Amendment if the visitor wanted to comment on any posts that could be considered official speech. (“If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.”)

Of great interest to those of us in the school law world, the Court actually offered a hypothetical involving a school board president, to illustrate the difference between official and personal speech:

Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board presiden

What this hypothetical (and the following discussion) tells us is that simply reposting (or re-tweeting) official posts from an official site on one’s personal site will not be considered “official speech.”  Ultimately it seems clear that whether a government official’s post is pubic speech subject to the First Amendment, or private speech that is not, will be a very fact-specific analysis that will need to be conducted on a post-by-post basis.  As the Court noted, in this analysis “the post‘s content and function are the most important considerations.”

Both cases are being sent back down to the Sixth Circuit and the Ninth Circuit, for further analysis by each court in light of the new decision.  For those interested in school law generally (and Texas school law specifically), keep an eye on the Ninth Circuit’s reconsideration in O’Connor-Ratcliff.  The trustees in that case argued that their personal social media pages could not have been official action, because school trustees in California are only authorized to act as part of a body corporate at a properly-called school board meeting – an argument frequently made in Texas as well.  The Ninth Circuit glossed over that issue, since their test focused more on how a trustee used his or her page (or how that use would have appeared to someone viewing the page).  However, with Lindke’s emphasis on actual authority, that may become a major issue in any reconsideration.