Earlier this month, the U.S. Supreme Court, in the case of Lindke v. Freed, unanimously held that if a public official blocks someone from accessing the official’s social media page/account, this can constitute state action under 42 U. S. C. § 1983, including for depriving a member of the public of his or her First Amendment rights, 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 application of this test will be fact-intensive, and the Court noted that “mixed use” social media accounts (i.e., an account that a public official uses for both personal and official posts) create the most opportunity for liability for a government entity. It is likely that much of the litigation in these cases will be regarding whether the public official had authority to speak on the state’s behalf when the official is “speaking” on social media. This will require a fact-specific review of the official (and his/her role) and the social media account itself, with the Court noting that “[t]he distinction between private conduct and state action turns on substance, not labels”. The Court noted that a public official’s authority to speak can be established not only by “statute, ordinance, [or] regulation” but also by “custom or usage.” This is where the fact-specific analysis will have to be undertaken by the lower courts, with a review of the social media account itself and the history of the official’s use of the account for engaging in state action.
If the public official has state authority to speak, the official also has to be attempting to exercise that authority when speaking on social media. This is also a fact-specific analysis that lower courts are now tasked with undertaking. Importantly, the Court indicated that, particularly for a mixed use (i.e., both private and public) social media account, the lower courts will need to analyze individual posts made by the public official to determine if any are state action.
The ultimate holding from the case is that, if any posts within a public official’s social media account are state action (as determined by the new two-prong test), the public official cannot block people from accessing the account. If the official does block people, those individuals may have a cause of action against the government entity itself.
Although nuanced, this is an important change in the law that creates an increased potential for liability for school districts based on speech made by district officials on social media, including blocking citizens or deleting comments. Districts and public officials are advised to review their social media accounts to ensure compliance in light of this change.