Nahmod Law

A variation of what I call the converse of the typical state action question arises when public officials post or block on social media. The Supreme Court recently addressed this issue in two cases in which it granted certiorari and vacated and remanded.

In one, Lindke v. Freed, 143 S. Ct. 1780 (2023), granting certiorari in Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024), the Question Presented was: “Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.”

In the other, O’Connor-Ratcliff v. Garnier, 143 S. Ct. 1779 (2023), granting certiorari in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 405 Ed. Law Rep. 715 (9th Cir. 2022), vacating and remanding, 144 S. Ct. – (2024)(per curiam, the Question Presented was: “Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social-media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.”

            In Lindke, the Sixth Circuit ruled that a city manager who used his Facebook page for administrative directives and for explaining his Covid-19 policies, but who also posted as a father and husband, 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 found that the city manager maintained the Facebook page in his personal capacity: under its “state-official” test, which it said 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, it 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: “we focus on the actor’s official duties and use of government resources or state employees.”

The Supreme Court, in a unanimous opinion by Justice Barrett, vacated in Lindke and remanded. Observing that in cases like this it is often difficult to tell whether speech is official or private, it emphasized that the plaintiff must show that the city manager (1) had actual authority to speak for the city and (2) purported to exercise that authority in the relevant posts. It is the source of the power that controls, and this must be ascertained on a case-by-case basis. In addition, the Court cautioned that a public official might post job-related information for personal reasons. “[I]t is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” After noting the difference between deleting and blocking, and warning about the dangers of “mixed use” social media accounts, the Court concluded: “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”

In O’Connor-Ratcliff, 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 they acted under color of law. It 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.” There was a clear nexus between the trustees’ use of social media and their official positions. The Ninth Circuit observed that it was following the analysis of the Second, Fourth and Eighth Circuits in emphasizing the defendants’ use of social media as “an organ of official business.”

Again, the Supreme Court vacated and remanded. In a per curiam opinion, it explained that on remand the Ninth Circuit should apply the Court’s approach in Lindke: (1) did the trustees have actual authority to speak for the school district and (2) did they purport to exercise that authority in their posts.

Note that the Court in Lindke and O-Connor-Ratcliff did not itself apply its two-part approach to the cases before it, as it could (and perhaps should) have done to provide guidance to the circuits, but instead remanded. Note also that the Court indicated that the inquiry into actual authority should be based not only on formal statutory law but also on “custom” and “usage” per the color of law language of § 1983.

On state action, the converse of the typical state action question and color of law generally, see Ch. 2 in Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 (2023-24 ed.)(West/Westlaw).