Constitutional law in the digital age has just changed forever. On March 15, 2024, the Supreme Court of the United States in Lindke v. Freed and O’Connor-Ratcliff v. Garnier determined when public officials’ actions on social media platforms are considered state action, implicating First Amendment rights.[i] At the heart of both cases is the question of whether and when a public official’s social media activity crosses the line from personal musings to official business, thereby subjecting their actions—such as blocking users or deleting comments—to constitutional scrutiny.
In Lindke, James Freed, the City Manager of Port Huron, Michigan, used his Facebook page for both personal and professional communications.[ii] Kevin Lindke, a Facebook user, criticized the city’s approach to the pandemic on Freed’s posts, leading Freed to delete Lindke’s comments and ultimately block him from the page.[iii] Lindke sued Freed under 42 U.S.C. §1983, alleging that Freed had violated his First Amendment rights by blocking him from commenting on a public forum.[iv] The Sixth Circuit ruled in favor of Freed, and the Supreme Court granted certiorari, ultimately vacating the Sixth Circuit’s judgment, and remanding the case.[v]
Similarly, in O’Connor-Ratcliff, Michelle O’Connor-Ratcliff and T. J. Zane, members of the Poway Unified School District Board, used public Facebook and Twitter pages to share information and engage with constituents about school district matters.[vi] Christopher and Kimberly Garnier, parents of students in the district, repeatedly posted critical comments on these pages, which led the Trustees to delete the Garniers’ comments and eventually block them from further commenting.[vii] The Garniers sued, claiming their First Amendment rights were violated.[viii] The case reached the Supreme Court, which vacated the Ninth Circuit’s judgment and remanded for reconsideration in light of its decision in Lindke.[ix]
The Court’s analysis begins by addressing the essence of state action under 42 U.S.C. §1983.[x] Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives someone of a federal constitutional or statutory right.[xi] However, the Court emphasizes that not all actions taken by an official in their official capacity automatically qualify as state action. This distinction is crucial for delineating the scope of First Amendment protections in cases involving public discourse on social media. Importantly, Justice Barrett set forth a two-prong test explaining how to determine whether a public official’s actions constitute state action in relation to social media use. Justice Barret stated, “a public official’s social-media activity constitutes state action under §1983 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.”[xii] This rule highlights the need to differentiate between personal expression and actions taken in an official capacity, particularly in the context of digital communication.
In dissecting the first prong, the Court delves into the requirement of “actual authority,” emphasizing that state action is predicated on the delegation of state power to the official. This necessitates a careful examination of whether the official’s actions on social media were empowered by their official capacity and responsibilities. The Court argues that merely having some authority to communicate with the public does not suffice. The specific actions in question must directly correlate with the official’s designated duties and powers. Furthermore, the second prong, concerning the “purported exercise of authority,” necessitates a demonstration that the official not only had the authority but also acted under the guise of this authority when engaging in the conduct being challenged. This aspect shows the importance of context and intent in social media interactions, acknowledging that public officials may speak on matters of public concern in a personal capacity, thus not engaging state action.
Underlying these decisions is the previous case against former President Donald J. Trump for blocking individuals from his social media account. There, the Second Circuit determined that Trump was acting within his official capacity when managing his social media account.[xiii] Consequently, the First Amendment was applicable, and by blocking users, Trump breached their First Amendment rights. However, once Trump left office, the Court dismissed the case as moot and vacated the Second Circuit judgment. The rulings in Lindke and O’Connor-Ratcliff reinforced the Second Circuit’s rationale and further illuminated the First Amendment consequences of public officials blocking users. For public officials, this ruling delineates a careful path for social media use, underscoring the importance of clearly demarcating personal and professional content to avoid potential First Amendment challenges. This is particularly relevant in an era where social media serves as a critical channel for both personal expression and official communication, requiring officials to judiciously balance these dual roles.
In conclusion, the Supreme Court’s decision in Lindke and O’Connor-Ratcliff marks a significant moment in constitutional law, adapting traditional principles of state action and First Amendment rights to the digital age. By articulating a specific test for evaluating state action in the context of social media use by public officials, the Court navigates the intricate balance between personal liberties and public duties, offering a comprehensive legal framework that will guide future cases in this evolving domain. As digital communication continues to redefine public discourse, this ruling stands as a critical reference point for understanding the constitutional dimensions of social media interactions in the public sphere.
[i] See Lindke v. Freed, 601 U.S. ____, No. 22-611, 2024 WL 1120880 (2024) (holding that public officials blocking users can be considered state action if they had actual authority to speak on behalf of the state and purported to exercise that authority in their posts); see also O’Connor-Ratcliff v. Garnier, 601 U.S. ____, No. 22-324, 2024 WL 1120878 (2024) (“Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit . . . .”); see also U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”).
[ii] See Lindke, 601 U.S. ____, 2024 WL 1120880, at *4. (“Some posts were personal . . . . Some contained general information, like case counts and weekly hospitalization numbers); see also Adam Liptak, Supreme Court Sets Rules for Blocking Citizens From Officials’ Accounts, N.Y. Times, (Mar. 15, 2024), https://www.nytimes.com/2024/03/15/us/supreme-court-social-media-free-speech.html (highlighting the importance of using an account in a public or private capacity as a public official).
[iii] See Lindke, 601 U.S. ____, 2024 WL 1120880, at *4.
[iv] See id.
[v] See id.
[vi] See O’Connor-Ratcliff, 601 U.S. ____, 2024 WL 1120878, at *1 (“In 2014, Michelle O’Connor-Ratcliff and T.J. Zane created public Facebook pages to promote their campaigns for election to the Poway Unified School District (PUSD) Board of Trustees.”); see also Garnier v. O’Connor-Ratcliff, 136 Harv. L. Rev. 1485, 1485 (2023) (“[T]he Ninth Circuit held that the First Amendment restricts the ability of public officials to block private individuals on social media).
[vii] See O’Connor-Ratcliff, 601 U.S. ____, 2024 WL 1120878, at *1.
[viii] See id.
[ix] See id.
[x] See 42 U.S.C. § 1983.
[xi] Id.
[xii] Lindke, 601 U.S. ____, 2024 WL 1120880, at *10 (“The state-action doctrine requires Lindke to show that Freed had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.”).
[xiii] See Knight First Amend. Inst. at Colum. Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (finding that Trump’s action of blocking users was unconstitutional pursuant to the First Amendment); see also Lindke v. Freed, American Bar Ass’n, https://www.americanbar.org/groups/public_education/publications/preview_home/lindke-v-freed/ (Dec. 14, 2023) (“These cases follow (and echo) the now-defunct case against then-President Donald J. Trump for blocking individuals from his own social media account.”).
