By Lauren Feiner , the senior policy reporter at The Verge, covering the intersection of Silicon Valley and Capitol Hill. She spent 5 years covering tech policy at CNBC, writing about antitrust, privacy, and content moderation reform.
Mar 15, 2024, 7:00 PM UTCIn an opinion signed by Justice Amy Coney Barrett, the Supreme Court established a test to determine when a public official can be considered to be engaging in state action in blocking someone from their social media account. The official must have both “(1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.”
The court issued a unanimous decision in Lindke v. Freed, a case about whether Port Huron, Michigan city manager James Freed violated the First Amendment by blocking and deleting comments on his Facebook page from resident Kevin Lindke, who critiqued Freed’s pandemic policies. The test creates a new way to determine if an official can be held liable for violating a citizen’s First Amendment rights through actions on their social media pages.
But it’s not enough for a social media page to simply belong to a public official. Barrett wrote, “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—including the First Amendment right to speak about their jobs and exercise editorial control over speech and speakers on their personal platforms.”
The distinction between private conduct and state action turns on substance, not labels
Barrett suggested that simple disclaimers could make a difference in the determination. “Here, if Freed’s account had carried a label—e.g., ‘this is the personal page of James R. Freed’—he would be entitled to a heavy presumption that all of his posts were personal,” the ruling says, “but Freed’s page was not designated either ‘personal’ or ‘official.’”
Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University said in a statement the court was “right to hold that public officials can’t immunize themselves from First Amendment liability merely by using their personal accounts to conduct official business.”
But, Fallow added, “We are disappointed, though, that the Court did not adopt the more practical test used by the majority of the courts of appeals, which appropriately balanced the free speech interests of public officials with those of the people who want to speak to them on their social media accounts. We hope that in implementing the new test crafted by the Supreme Court today, the courts will be mindful of the importance of protecting speech and dissent in these digital public forums.”
The Knight Institute challenged former President Donald Trump in 2017 over blocking users from his @realDonaldTrump Twitter account. They argued his account was a “public forum” where people could not be excluded for their views, and the lower courts agreed. In 2021, when Trump was no longer in office, the Supreme Court ordered the lower court to vacate a ruling against Trump and dismiss it as moot.
Dhillon Law Group partner Gary Lawkowski said in an emailed statement about the new ruling that “the biggest impact of this opinion may not be the formal test set forth in its holding—rather, its language buried in the opinion that effectively creates a safe harbor for public officials who place disclaimers on their social media accounts, providing an easy way for public officials to stay on the ‘personal’ side of the law going forward.”
The justices vacated and remanded the case back to the lower court.