On March 15, 2024, in a rare occurrence, the United States Supreme Court in Lindke v. Freed issued a unanimous decision creating a newly designed approach for determining when a public official’s action in using their personal social media account could be seen as “state action,” subject to the First Amendment of the U.S. Constitution. This is a key issue because an individual acting in a private capacity cannot violate another individual’s First Amendment rights. Based on the new approach, the Supreme Court vacated the judgment of the Sixth Circuit Court of Appeals in Lindke, as well as the judgment of the Ninth Circuit court in O’Connor-Ratcliff v. Garnier, and remanded the cases for further proceeding based on the new test.

The two cases were decided at the appellate level based on different reasonings. In Lindke, the Supreme Court spelled out a new approach, distinct from the Ninth and Sixth Circuits’ approaches, and held that a public official’s action would constitute state action only if the public official possesses actual authority related to the action and if, when taking the action, the public official purports to possess the authority. This was a significant victory for public officials because it creates a higher bar for members of the public to allege a violation of the First Amendment by such officials when regulating comments on their private social media pages.

Plaintiffs in both O’Connor-Ratcliff and Lindke alleged a violation of their First Amendment rights in the social media setting when the public officials involved blocked the plaintiffs’ access to those public officials’ personal social media platforms. O’Connor-Ratcliff involved school board trustees Michelle O’Connor-Ratcliff and T.J. Zane who blocked Christopher and Kimberly Garnier, parents of district students, from being able to read and post on the trustees’ Facebook pages and/or Twitter accounts, due to the Garniers’ repeated, lengthy and repetitive postings. In ruling in favor of the Garniers, the Ninth Circuit focused on the state action issue, disagreeing with the trustees’ argument that there was no state action involved since the district did not require the trustees to have social media accounts in order to interact with constituents, nor did the district provide financial or other support for the social media accounts. The Ninth Circuit stated that, by appearance and content, the trustees held out their social media pages to be official channels of communication with the public.

Lindke’s facts were similar, but the Sixth Circuit’s decision followed a different approach. In Lindke, the Sixth Circuit affirmed the lower court’s judgment in favor of James Freed, a Michigan city manager who deleted an individual’s comments and eventually blocked that individual from his Facebook page. The Sixth Circuit explained that state action could fairly be attributable to the state only in situations such as where state law requires an officeholder to maintain a social media account, the official uses state resources to run the account, or the account belongs to an office rather than to the individual officeholder.

The Supreme Court rejected both the Sixth and Ninth Circuits’ approaches. Instead, the Supreme Court’s new two-part test asks: 1) Did the public official possess actual authority to speak on the state’s behalf? and 2) Did the public official purport to exercise that authority when taking action on the social media platform involved? In crafting the test, the Supreme Court acknowledged that public officials can act on behalf of the state, but recognized that officials are also private citizens with their own individual constitutional rights. The Court cautioned that the distinction between private conduct and state action rests on substance rather than labels and requires a fact-intensive analysis. To determine whether a public official possesses authority to act on the state’s behalf, the Court specified statutes, ordinances, regulations, customs and usages as acceptable sources of authority, rather than “excessively broad job descriptions.” The Court also stated that such a determination must include an evaluation as to whether the public official’s action was connected to speech on a matter that was within their authority. For example, if a district’s board bylaw designates the board president as able to speak on behalf of the board, that may meet the first prong of the test.

On the second prong of the test, the Supreme Court stated that the public official must not only have the authority to act on behalf of the state, but must purport to use that authority when taking the action. In other words, the public official must have acted in their capacity as a public official. On this, the Supreme Court again admonished that distinctions between private and public capacities are hard to make and require a case-by-case analysis.

With the remand of O’Connor-Ratcliff, the Ninth Circuit will have to apply the Supreme Court’s two-prong test to the facts of that case. Even as that case progresses through the Ninth Circuit on remand, the Supreme Court’s decision offers some lessons for public officials with personal social media handles in ensuring that their personal social media accounts are easy to classify as private rather than public fora. For example, the Supreme Court clarified that applying a private label to a social media account, such as with a disclaimer that states that views expressed on that platform are those of the individual, can help when seeking to classify the official’s social media handles as private versus public for the purpose of determining whether First Amendment doctrines would apply.