Nahmod Law

Important state action issues involving social media are arising with increasing frequency in the circuits. These issues typically occur in the First Amendment setting where state and local government officials block citizens from their social media. The threshold question is whether such blocking constitutes state action and thus implicates not only the First Amendment but also the possibility of §1983 damages liability. (See cases collected in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 §2:16 (“Media, Including Social Media”)(2023-24 ed.)(West/Westlaw)).

The Supreme Court recently granted certiorari in two social media cases that came out differently on the state action question, one from the Sixth Circuit and the other from the Ninth Circuit.

Lindke v. Freed: The Sixth Circuit Decision (No State Action)

Lindke v. Freed, 37 F.4^th 1199 (6^th Cir. 2022), cert granted, 143 S. Ct. — (2023), involved a city manager who used his Facebook page for administrative directives and for explaining his Covid-19 policies. He also used the page to post as a father and husband. The Sixth Circuit ruled that he was not a state actor when he deleted the plaintiff’s critical comments from his page and “blocked” him as well, thereby keeping the plaintiff from commenting on the page and its posts.

The Sixth Circuit, affirming the district court’s grant of summary judgment to the defendant, found that the city manager maintained the Facebook page in his personal capacity. Under what it called its “state-official” test, which was a version of the Supreme Court’s nexus test, the Facebook page did not derive from defendant’s duties as city manager—it did not belong to the office of city manager. Further, the Facebook page did not depend on his state authority. The Sixth Circuit observed that its approach was different from that of some other circuits which focused on a page’s appearance or purpose: “[W]e focus on the actor’s official duties and use of government resources or state employees.”

Garnier v. O’Connor-Ratcliff: The Ninth Circuit Decision (State Action)

Compare Garnier v. O’Connor-Ratcliff, 41 F.4^th 1158, 1163 (9^th Cir. 2022), cert granted, 142 S. Ct. — (2023), where members of a school district’s board of trustees, who used social media to communicate with constituents and parents about public issues and board matters, blocked the plaintiff parents entirely from defendants’ social media pages because of the plaintiffs’ repeated criticisms of the trustees and the board. The Ninth Circuit ruled that the defendants acted under color of law.

Affirming the district court’s judgment for the plaintiffs, the Ninth Circuit declared: “[A] state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments.” The Ninth Circuit reasoned that there was a clear nexus between the trustees’ use of social media and their official positions. And it commented that it was following the analysis of the Second, Fourth and Eighth Circuits in emphasizing the use of the defendants’ use of social media as “an organ official business.”

Comments

The ultimate question in all state action cases is whether the challenged nominally private conduct of a person or entity should be attributed to the state or local government. Another way of putting this is to ask whether the state or local government is responsible for the challenged conduct.

Note that there is no one state action test. In fact, there are more than a few–nexus, symbiotic relationship, public function, joint activity and entwinement–any one of which can support a finding of state action. See generally §§2:4-2:17 of my Treatise for a comprehensive discussion of state action.

In addition, the Court has repeatedly made clear that the state action inquiry must be made on a case-by-case basis. It is therefore unlikely that what the Court does in these cases will give us an generally applicable state action rule for social media.

On the other hand, consider that these particular state action cases implicate important First Amendment considerations which will surely be uppermost in the minds of the Justices and therefore likely affect the state action outcomes.