The Fundamental Freedom to Facebook: The Balance Between Public and Private Posts for Government Officials in Lindke v. Freed

By: Lindsey Cox, Vol. 23 Staff Writer

Overview

The Supreme Court recently held in Lindke v. Freed that a public official who prevents someone from commenting on the official’s social-media page becomes a state action only if the official possessed actual authority to speak on the State’s behalf on a particular matter, and purported to exercise that authority when speaking in the relevant social-media posts. This blog details the outcome of the case and potential implications that could result from the decision, primarily within the speech rights of public officials on social media. 

Test for State Action 

James Freed created a private Facebook profile, which he later changed to a public page. with the information that he was the city manager of Port Huron, Michigan, as well as being a husband and father. During the COVID-19 pandemic, he shared both personal posts, and posts containing information pertaining to his job as city manager. He also responded to comments on his posts containing questions about community matters. Facebook user Kevin Lindke commented on some of Freed’s posts communicating his frustration with the city’s handling of the pandemic. Freed responded by deleting Lindke’s comments and then blocked him from commenting at all. Lindke sued Freed under 42 U.S.C. § 1983, arguing that his rights under the First Amendment had been breached. The District Court held that Lindke’s claim failed because Freed’s actions were taken in his private capacity, and the Sixth Circuit affirmed. 

When the case reached the Supreme Court, the Court described a test and then remanded the case back to the Sixth Circuit. This factor test was employed to determine if a public official’s prohibition of a person’s comments constitutes a state action under §1983, requiring  actual authority and ability to exercise that authority. The first prong is grounded in the requirement established in Lugar v. Edmondson Oil Co., which provides that if conduct hinders a federal right, it must be fairly traceable to state authority. In determining if there was authority, the question is not “whether making such announcements could fit within a part of a job description but whether making such announcements is actually part of the job that the State entrusted the official to do.”  

The second prong requires that the actual authority was utilized, that the official spoke under their official responsibilities, not with their own voice. The purported use of actual authority is a fact specific determination that the court states requires an awareness of the authority and a desire to use it. 

In its opinion, the court also discusses the uniqueness of applying the test to social media. The court acknowledges the large number of local government officials who utilize social media to communicate both personal and professional information, as well as the difficulty of categorizing the broad and ever-changing landscape of social media discourse. The court zooms in specifically on the action Freed took to block Lindke from engaging with the page in totality and compares it to the smaller action of deleting one specific comment. The court warns about the potential danger to a public official who does not keep their personal posts in a separate account, opening greater liability. 

The Implications

The Court’s ruling in Lindke v. Freed is a narrow one. The Court does not apply the state action test to the facts of the case, leaving the application of the test up to Sixth Circuit interpretation. Additionally, the First Amendment analysis does not conclude with the question of state action. Even if a court concludes that the public official acted in their official capacity, the court still has to determine if the official’s actions violated the First Amendment. If there is a state action, this opens up the potential for the discussion of forum analysis on social media pages.  

If the court deems a social media account a public forum and public officials are using it to speak in an official manner, it is more likely that officials are violating the First Amendment when they bar speech. Courts have begun to address the varying ways interaction might trigger different protections of the First Amendment. One example is Knight First Amendment Institute v. Trump, which held that while the President’s space for replies and retweets constitutes a public forum, the government could not exclude users from the forum based on viewpoints. 

Overall, the case is a narrow holding that demonstrates the factors to be considered in determining if a public official is acting in a public capacity that meets the requirement of state action. The scope of the use of the social media accounts seems to be of chief importance in these cases. Social media presents the unique difficulty of determining the role a public official plays within an account to be a state action, and if there is a state action, if there is a forum present. Moving forward, the court will likely begin to develop a stronger framework for determining how the First Amendment applies to government action on social media.