On March 15, 2024, the Supreme Court of the United States announced its decision in Lindke v. Freed, addressing the question of whether local government employees, through their personal social media accounts, are acting in their official government capacity. James Freed, the City Manager of Port Huron, Michigan maintained a personal Facebook account where he occasionally shared job-related content and questions, alongside personal updates. Amidst the COVID-19 pandemic, Freed shared both personal and work-related topics, including information about citywide pandemic efforts. When Facebook user Kevin Lindke expressed dissatisfaction with Port Huron’s pandemic protocols in the comments section of Freed’s Facebook posts, Freed deleted Lindke’s comments and eventually blocked Lindke from posting entirely on his page.
Lindke subsequently brought a 42 U.S.C. § 1983 action, alleging that Freed’s actions violated his First Amendment rights by restricting his participation in a “public forum.” The Sixth Circuit affirmed the District Court’s ruling in Freed’s favor, determining that Freed’s management of his account constituted private conduct lacking government involvement or “state action.” The Sixth Circuit’s decision created a circuit split. The Sixth Circuit’s approach to the social media of government employees differed from that of the Second and Ninth Circuits. The latter circuits were focusing more on whether the account’s appearance and content look official as opposed to the Sixth Circuit’s focus on the connection between the government official’s authority and the account.
The Supreme Court’s unanimous opinion, authored by Justice Amy Coney Barrett, acknowledged “the line between private conduct and state action is difficult to draw,” primarily when a government employee routinely interacts with the public online. Highlighting the state-action doctrine, Barrett opined that Lindke would have to demonstrate that the government official (1) as a threshold matter, had actual authority to speak on behalf of the government on a particular matter through law or longstanding custom, and (2) purported to exercise that authority when posting on social media. Generally, if public employees refrain from making social media posts on their personal accounts that further their official responsibilities, they speak on behalf of themselves and not the government. However, if a public employee makes social media posts on their personal accounts that are a mix of both personal and official content, determining whether such posts qualify as personal or official on an “ambiguous page” is a fact-specific inquiry. Indeed, government employees do not forfeit their right to share their personal opinions when they take office. However, government employees who fail to keep personal posts in a clearly designated personal account may therefore open themselves to potential liability for First Amendment claims.
The U.S. Supreme Court vacated the Sixth Circuit’s judgment and remanded the case for analysis using the abovementioned test. Accordingly, public officials should continue to approach social media with caution. In addition to adhering to comprehensive social media policies, it may be advisable for public officials to maintain separate personal and government profiles and consider designating personal pages as just that, indicating “This is the personal page of __________.”
If you have questions on the impact of this ruling, Mansour Gavin attorneys are available to provide guidance on this and other social media concerns. Contact us today.
Authored by Diane A. Calta, Partner, and Angelica Blair, law clerk and 3rd year student at Case Western Reserve University School of Law.
