You Can’t Block Them! Lindke v. Freed and the Intersection Between State Action and Social Media
“To misuse power, however, one must possess it in the first place.”
In 2024, it is no question that social media is widely used. Individuals use it to post about their lives, businesses use it to advertise, and it is not uncommon for cities and towns to use it to spread information to citizens. Just a few years ago during his presidency, Donald Trump frequently communicated with the entire country through his Twitter account. But what happens when an individual uses their social media account both as an individual and to spread information to citizens on behalf of a city? The United States Supreme Court provided insight into this question in a recent decision, Lindke v. Freed.
To better understand the decision, a brief explanation of the applicable law may be useful. Section I of the Fourteenth Amendment provides, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Section 1983 of the United States Code protects individuals’ constitutional rights by providing a cause of action against any person that deprives an individual of their rights when the action of that person can be attributed to the State. The state action requirement imposed by Section 1983 forces differentiation between actions of an individual person, and actions of the state. In many cases, it is clear when a state action is present because the action was done by a police officer, a public-school teacher, a city worker, or the like. In other cases, the distinction is not as clear. Lindke v. Freed presents a new example of how the court makes a state action determination when there is a lack of clarity.
Summary of the Case
The Supreme Court heard arguments in the case on October 31, 2023, and issued an opinion on March 15, 2024. In Lindke v. Freed, James Freed’s Facebook profile was the topic of discussion. Freed first created his Facebook profile sometime around 2008 while he was in college and like many, shared posts about his own personal life and experiences. In 2014, Freed became the city manager of Port Huron, Michigan and updated his profile to reflect his new position. Freed then began to use his account to share personal things, post general information, and post information related to his position as city manager. These posts continued when the COVID-19 pandemic began. Kevin Lindke, who was less than satisfied with Port Huron’s approach to the pandemic, began to leave comments on Freed’s Facebook page expressing his feelings. Freed deleted Lindke’s comments and eventually blocked him.
After being blocked, Lindke sued Freed alleging that Freed violated his First Amendment rights under 42 U.S.C. § 1983. Lindke asserted that Freed’s Facebook page was a public forum and as such, Lindke had a right to leave comments on it. In granting summary judgment to Freed, the District Court concluded that Freed operated his account in a personal manner and therefore, Lindke’s claim under § 1983 could not survive. The Sixth Circuit affirmed and held that “an official’s activity is state action if the ‘text of state law requires an officeholder to maintain a social-media account,’ the official ‘uses…state resources’ or ‘government staff’ to run the account, or the ‘account belongs to an office, rather than an individual officeholder.’” The Sixth Circuit found that Freed’s social media activity did not fit these parameters.
Even when a person holds a government position and can act on behalf of the government, they are still just people, and it cannot always be said that they are acting on behalf of the government. The question that the Supreme Court was faced with was whether Freed, a state official, was acting within his rights as an individual, or if he was acting through his position as the city manager. The Court noted that if Freed was acting as an individual when he blocked Lindke, he was exercising his own First Amendment rights. In contrast, if Freed was acting as city manager when he blocked Lindke, there would be state action. To help detect state action in the context of social media under § 1983, the Supreme Court created a two-prong test.
The first prong requires that the official possessed actual authority to speak on the State’s behalf. The authority to speak or act on the State’s behalf can come from multiple sources. Section 1983 provides that the source of such authority may come from “statute, ordinance, regulation, custom, or usage” so, Freed could have authority to speak on behalf of Port Huron if there was written authority for such an action. Authority may also be given through custom or usage so, if the previous city managers have spoken on behalf of the city and have been given the authority to do so, Freed would have such authority as well. The Court further noted that the authority to speak on behalf of the State extends to speech on social media platforms, even if authority to speak on social media is not granted explicitly.
The second prong requires that the official purported to exercise their authority to speak on the State’s behalf when he spoke on social media. A public employee purports to exercise their ability to speak on the State’s behalf when the speech is used in furtherance of his official responsibilities. In discussing this prong, the Court places importance on the context of the speech noting that some personal pages contain disclaimers noting that everything on the page is strictly of that individual’s opinion while some other pages are very clearly dedicated to speaking for the government. Freed’s page is not so clear because it does not have a designation as a certain type of account, and it contains both personal posts and posts connection to his employment as city manager. In handling hard to determine cases such as this, the court stresses that the determination is specific to the facts of each case and that the plaintiff must show that the official is purporting to use their authority in specific posts.
To the extent that the two-prong test differs from the test used by the Sixth Circuit, the Supreme Court vacates the judgment of the Sixth Circuit and remands the case.
Future Outcomes
As a result of this decision, public officials will need to be cautious in how they use social media. At the end of the opinion, the Court explained that the nature of technology and the actions performed may lead to different conclusions. If a government official uses the same social media account for personal use and to communicate as a government official, there are different implications for different actions. For example, if the government official shares a post that is purely personal and deletes someone’s comment on that post, it is likely that the official will be found to have been acting as an individual rather than a state actor. On the other hand, if the government official blocks an individual from their page, problems may arise because the blocked account can no longer make comments on any of the official’s posts, including those that are made using the official’s authority to speak on behalf of the government. To prevent the issues that arise when government officials use their social media account for multiple purposes, officials on social media should consider having separate accounts for their personal use and for their use as a government official.
