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United States Supreme Court Resolves Circuit Split About Identifying State Action In The Context of Public Officials Using Social Media

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Social media use is an everyday occurrence for many people, including public officials who may use their social media platforms to communicate with constituents. However, there may be unintended liability for public officials who block constituents from commenting or interacting on their social media posts.

In two cases decided by the United States Supreme Court on March 15, 2024, the parties disputed whether a public official could block constituents on social media. The purpose of hearing these cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, was to resolve a Circuit split about how to identify state action in the context of public officials using social media. The Supreme Court held that a public official may block constituents or delete comments from social media so long as the public official is not acting on behalf of the state. The test for determining whether a public is engaged in state action on social media is whether the public official: (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.

Circuit Split

In Garnier, a Board of Trustees member created a public Facebook page to recap board meetings, solicit feedback from the community, and post about district-related content. The Garniers had children in the district, and they would repeatedly post on the Trustee’s Facebook and Twitter feed. The Trustee would delete the Garniers’ comments and ultimately blocked them from commenting altogether. The Garniers filed a §1983 claim against the Trustee, alleging that she violated their First Amendment rights. The District Court held that the Trustee acted under color of state law when she blocked the Garniers from commenting on her social media. The U.S. Court of Appeals for the Ninth Circuit affirmed the District Court’s decision, reasoning that there was a close nexus between the Trustee’s use of her social media pages and her official position. The Ninth Circuit found state action based on the official appearance and content of the Trustee’s social media pages.

In Lindke, Freed used his public Facebook page to post about his personal life and his job as city manager. Lindke would comment on Freed’s posts, expressing disagreement with how the city handled the COVID-19 pandemic. Freed would occasionally delete Lindke’s comments and ultimately blocked Lindke from commenting altogether. Lindke filed a §1983 claim against Freed, alleging that Freed violated his First Amendment rights by preventing him from posting to a public forum. The District Court determined that Freed managed his Facebook page in his private capacity, and he was not acting under the color of state law when posting to his Facebook page. The U.S. Court of Appeals for the Sixth Circuit affirmed the District Court’s decision.

U. S. Supreme Court

The United States Supreme Court granted the petitions to review Garnier and Lindke to resolve the Circuit split. In Lindke, the Court held that a public official who prevents someone from commenting on the official’s social media page engages in state action under §1983 only 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. Writing for the court, Justice Barrett said that “the distinction between private conduct and state action turns on substance, not labels: Private parties can act with authority of the State, and state officials have private lives and their own constitutional rights—including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms.” The Court reasoned that if Freed blocked and deleted Lindke’s comments in his private capacity, then Freed was merely exercising his own constitutional rights.

Furthermore, unless Freed had state authority to post city updates and register citizen concerns, his conduct was not attributable to the State. Justice Barrett writes, “the threshold inquiry to establish state action is not whether making official announcements could fit within a job description but whether making such announcements is actually part of the job that the State entrusted the official to do.”

The Court vacated the Sixth Circuit’s judgement and remanded for further proceedings to the extent that the test applied by the Sixth Circuit was inconsistent with its opinion. The Court also vacated and remanded the Ninth Circuit’s decision in Garnier for further proceedings consistent with its opinion in Lindke.

Impact of Decision

The U.S. Supreme Court’s decision impacts all government officials, which includes school board members and other public officials such as school district administrators. (See also Wis. Stats. §§ 19.42(7w)(f) and (g)). When posting on social media, school board members should consider whether their speech is official or private, and whether their speech is attributable to the state, and thus subject to First Amendment scrutiny.

School boards should also review their policies related to which officials have authority to speak for the district and ensure that their practices align with policy. If a board member does not have authority to speak for the district, it is best practice to include a disclaimer that the board member is speaking as a private citizen, not on behalf of the board or the district. It is advisable to disable comments on school-related social media accounts to avoid these issues or problems.

If you have any questions about this Legal Update, please contact Attorney Mary Gerbig at mgerbig@buelowvetter.com or 920-362-5064, or Attorney Aleah Loll at aloll@buelowvetter.com or 262-409-7313, or your Buelow Vetter attorney.

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