Case Summary and Outcome

The United States Supreme Court held that public officials may prevent people from commenting on their social media pages when they act in their private or personal capacity. The case involved, on the one hand, James Freed —who was appointed city manager of Port Huron, Michigan, and frequently posted both personal and official information on his Facebook profile—, and Kevin Lindke, another Facebook user who commented on one of Freed’s posts expressing his disagreement with the city’s approach to the COVID-19 pandemic. Freed deleted Lindke’s comments and blocked him. Lindke claimed that Freed’s Facebook was a public forum because he was a public officer. He argued that Freed engaged in viewpoint discrimination by deleting unfavorable comments and blocking the people who wrote them, thus violating his freedom of expression under the First Amendment. Freed responded that by posting on Facebook, he was acting in his personal and private capacity, not as a public officer. The Supreme Court held that a public official engages in state action only if they possessed the 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. Further, the Court concluded that if these two conditions are not met, then the actions are not attributable to the State, and, thus, there can be no violation of the First Amendment, which necessarily requires governmental action. The Supreme Court did not solve the specific case but vacated the judgment and remanded it for further proceedings at the lower level.

Facts

In 2014, James Freed updated his Facebook profile to reflect that he was appointed city manager of Port Huron, Michigan. On his page, he posted primarily about his personal life. Occasionally he also shared information related to his job and asked for feedback from the public. He usually responded to the comments he received and deleted those he thought were offensive or senseless.

During the COVID-19 pandemic, Freed published personal posts and shared some information about his job. Kevin Lindke, another Facebook user, commented on some of Freed’s posts, expressing his disagreements with the city’s approach to the pandemic. Freed deleted Lindke’s comments and blocked him from commenting.

Lindke sued Freed, alleging a violation of his First Amendment rights. He argued that he had the right to comment on Freed’s Facebook page because it was a public forum.

A district court held that Freed managed his Facebook page in his private capacity because his account’s posts were prevailingly personal, and for the most part, did not involve the government or were related to official business. Since only state action, the district court argued, can give rise to a First Amendment violation, Lindke’s claim failed. The Court of Appeals for the Sixth Circuit upheld the judgment, as it also considered that Freed’s activity on Facebook was not attributable to the state. Nevertheless, the Court admitted that the caselaw was not clear about when a state official acts personally or officially on social media.

Lindke filed a writ of certiorari before the United States Supreme Court.

Decision Overview

Judge Amy Coney Barrett delivered the unanimous opinion for the Supreme Court of the United States of America. The main issue before the Court was whether blocking a social media user from an account owned by a public official—and deleting their comments—violated the First Amendment right to free speech. In doing so, the Court also had to decide how to distinguish whether a public official uses social media in a personal capacity or as an extension of the government.

Lindke claimed that Freed violated his right to free speech by blocking him from his Facebook page. He argued that Freed’s Facebook profile was a public forum—because Freed was a public servant—where he had the right to comment, and that Freed engaged in viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. On the other hand, Freed responded that his Facebook account was strictly personal. Since he was not acting in an official capacity, the defendant held that his actions were not attributable to the state, and did not violate Lindke’s First Amendment rights.

First, the Court explained that the need for governmental action is “explicit in the Free Speech Clause, the guarantee that Lindke invokes in this case.” [p. 5] However, it also admitted that sometimes “the line between private conduct and state action is difficult to draw.” [p. 6] In this sense, the judges acknowledged that the Supreme Court has had few opportunities to consider whether a “state official engaged in state action or functioned as a private citizen.” [p. 2]

The Court argued that “while public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.” [p. 7] Upon this basis, the Supreme Court held that “if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own.” [p. 8] According to the Court, “the distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights.” [p. 8] This means that the fact that Freed was the city manager of Port Huron did not necessarily entail that all his actions were on behalf of the government.

The Court insisted that the line between personal and official communications from public servants in social media is often blurred.  Nevertheless, the Court considered that a public official’s social media activity constitutes state action “only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” [p. 8]

Regarding the first requisite, the Court said that “to misuse power, one must possess it in the first place.” [p. 11] In this case, it explained that “a city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements” or if “prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager’s power to do so has become permanent and well settled.” [p. 11] The Court also held that having authority over a particular subject “may reasonably encompass authority to speak about it officially.” [p. 11] The key issue, the Court opined, was whether making official statements is actually part of the job that the state commended the public official to do.

Regarding the second requisite, the Supreme Court explained that a public official “purports to speak on behalf of the State while speaking in his official capacity or when he uses his speech to fulfill his responsibilities pursuant to state law.” [p. 12] However, the Court clarified that “if the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.” [p. 12] The Court further said that the substance of an announcement could even be the same, but if the context differs (an official meeting versus a private event), then the speech’s qualification can be different.

The Court found the specific case particularly challenging because Freed’s Facebook profile was not labeled either as “personal”, “private”, or “official”, and it had mixed-use. The Court considered that Freed made some posts in his personal capacity and others in his capacity as city manager. Still, in ambiguous cases, the Court warned that “an official does not necessarily purport to exercise his authority simply by posting about a matter within it.” [p. 14] According to the Court, a public official “might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection.” [p. 14] In other words, “officials too have the right to speak about public affairs in their personal capacities.” [p. 14]

Finally, the Court also developed parameters regarding the deletion of comments and blocking users on Facebook. On this matter, the Court held that “so far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment.” [p. 15] Considering this, the Court explained that for mixed-use social-media accounts, where a user shares personal information and acts on an official capacity, “a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.” [p. 15]

Thus, the Court vacated the judgment and remanded it for further proceedings at the Sixth Circuit Court, consistent with the opinion.