12 Free Speech and Social Media

Social Media and State Action

Social media also presents new dilemmas for the state action doctrine. Government actors are bound by the First Amendment when acting in their official capacity, but private figures — or public figures acting outside their duties — are not. This becomes an issue on social media platforms when public figures want to block or mute someone. A member of Congress who selectively blocks members of the other party when posting about their votes on bills, for example, might be in violation of content discrimination principles, specifically for creating a type of digital “public forum” for their account, and then removing people from it based on their viewpoints. But what if the same politician is verbally attacked after posting pictures of their family? Here, we might expect that a politician would have the same rights to delete or block unwelcome comments or speakers as any private citizen.

The key question, then, is when are politicians subject to First Amendment guidelines when they curate their social media feeds, and when are they instead free to act like private citizens?

Today, government actors increasingly have separate social media accounts to deal with this problem: one for their official duties, and one for their unofficial communications. When such separation does not occur, however, what are the rules for deciding when such actors can block people from viewing their content?

One potential case for this issue emerged towards the end of the first Trump administration, specifically for the president himself, who had blocked several critics of his posts on a Twitter account that was simultaneously public and private in nature. However, by the time the case reached the Supreme Court (the lower courts had held that Trump had violated the First Amendment by blocking the plaintiffs), Trump had left office, and so the Court held the issue to be moot. In 2024, the Court revisited the issue with a pair of cases involving local officials (a city manager and school board officials, respectively). The Court used the first case, Lindke v. Freed, to decide the issue, and then quickly disposed of the second case, O’Connor-Ratcliffe v. Garnier, using the new test created by Lindke. The test itself can be summarized as follows: official speech (which is subject to the First Amendment and public forum doctrine) exists when 1) the speaker possessed the authority to speak on the government’s behalf, and 2) aimed to exercise that authority when they spoke on social media.

 Lindke v. Freed 

601 U.S. 187

Facts: Freed, the city manager of Port Huron, Michigan, operated a Facebook account. The account predated his tenure as manager. While Freed would often use the account to post family photos, he would also sometimes include information about his job, such as visits to city locations or highlighting communications from other public officials. During COVID, Lindke criticized both the city and Freed, responding to Freed’s postings. Freed first deleted comments he didn’t like, and then blocked him (which at the time meant Lindke could still see the posts but no longer comment on them).

Lindke sued, arguing that his blocking amounted to unconstitutional viewpoint discrimination. The district court held Freed had primarily acted as a private citizen on his account and granted him summary judgment. The Sixth Circuit agreed. As different federal circuits had different rules about defining state action in social media, the Court granted certiorari to resolve the differences.

Question: Did the Sixth Circuit apply the correct test to assess state action in this context?

Vote: No (remanded) (9-0)

For the Court: Justice Barrett

JUSTICE Barrett delivered the opinion of the Court.

Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them.

For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan—and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke’s speech.

When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State 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.

I

A

Sometime before 2008, while he was a college student, James Freed created a private Facebook profile that he shared only with “friends.” … When Freed, an avid Facebook user, began nearing the platform’s 5,000-friend limit, he converted his profile to a public “page.” This meant that anyone could see and comment on his posts. Freed chose “public figure” for his page’s category, “James Freed” for its title, and “JamesRFreed1” as his username. Facebook did not require Freed to satisfy any special criteria either to convert his Facebook profile to a public page or to describe himself as a public figure.

In 2014, Freed was appointed city manager of Port Huron, Michigan, and he updated his Facebook page to reflect the new job. For his profile picture, Freed chose a photo of himself in a suit with a city lapel pin. In the “About” section, Freed added his title, a link to the city’s website, and the city’s general email address. He described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.”

As before his appointment, Freed operated his Facebook page himself. And, as before his appointment, Freed posted prolifically (and primarily) about his personal life. He uploaded hundreds of photos of his daughter. He shared about outings like the Daddy Daughter Dance, dinner with his wife, and a family nature walk. He posted Bible verses, updates on home-improvement projects, and pictures of his dog, Winston.

Freed also posted information related to his job. He described mundane activities, like visiting local high schools, as well as splashier ones, like starting reconstruction of the city’s boat launch. He shared news about the city’s efforts to streamline leaf pickup and stabilize water intake from a local river. He highlighted communications from other city officials, like a press release from the fire chief and an annual financial report from the finance department. On occasion, Freed solicited feedback from the public—for instance, he once posted a link to a city survey about housing and encouraged his audience to complete it.

Freed’s readers frequently commented on his posts, sometimes with reactions (for example, “Good job it takes skills” on a picture of his sleeping daughter) and sometimes with questions (for example, “Can you allow city residents to have chickens?”). Freed often replied to the comments, including by answering inquiries from city residents. (City residents can have chickens and should “call the Planning Dept for details.”) He occasionally deleted comments that he thought were “derogatory” or “stupid.”

After the COVID–19 pandemic began, Freed posted about that. Some posts were personal, like pictures of his family spending time at home and outdoors to “[s]tay safe” and “[s]ave lives.” Some contained general information, like case counts and weekly hospitalization numbers. Others related to Freed’s job, like a description of the city’s hiring freeze and a screenshot of a press release about a relief package that he helped prepare.

Enter Kevin Lindke. Unhappy with the city’s approach to the pandemic, Lindke visited Freed’s page and said so. For example, in response to one of Freed’s posts, Lindke commented that the city’s pandemic response was “abysmal” and that “the city deserves better.” When Freed posted a photo of himself and the mayor picking up takeout from a local restaurant, Lindke complained that while “residents [we]re suffering,” the city’s leaders were eating at an expensive restaurant “instead of out talking to the community.” Initially, Freed deleted Lindke’s comments; ultimately, he blocked him. Once blocked, Lindke could see Freed’s posts but could no longer comment on them.

B

Lindke sued Freed under 42 U. S. C. §1983, alleging that Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page, which he characterized as a public forum. Freed, Lindke claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them.

The District Court granted summary judgment to Freed. Because only state action can give rise to liability under §1983, Lindke’s claim depended on whether Freed acted in a “private” or “public” capacity. The “prevailing personal quality of Freed’s post[s],” the absence of “government involvement” with his account, and the lack of posts conducting official business led the court to conclude that Freed managed his Facebook page in his private capacity, so Lindke’s claim failed.

The Sixth Circuit affirmed…

The Sixth Circuit’s approach to state action in the social-media context differs from that of the Second and Ninth Circuits, which focus less on the connection between the official’s authority and the account and more on whether the account’s appearance and content look official. We granted certiorari.

II

… In the run-of-the-mill case, state action is easy to spot…

Sometimes, however, the line between private conduct and state action is difficult to draw. Griffin v. Maryland is a good example. There, we held that a security guard at a privately-owned amusement park engaged in state action when he enforced the park’s policy of segregation against black protesters. Though employed by the park, the guard had been “deputized as a sheriff of Montgomery County” and possessed “ ‘the same power and authority’ ” as any other deputy sheriff. The State had therefore allowed its power to be exercised by someone in the private sector. And the source of the power, not the identity of the employer, controlled.

By and large, our state-action precedents have grappled with variations of the question posed in Griffin: whether a nominally private person has engaged in state action for purposes of §1983. Today’s case, by contrast, requires us to analyze whether a state official engaged in state action or functioned as a private citizen. This Court has had little occasion to consider how the state-action requirement applies in this circumstance.

The question is difficult, especially in a case involving a state or local official who routinely interacts with the public. Such officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But the state-action doctrine avoids such broad-brush assumptions—for good reason. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights. By excluding from liability “acts of officers in the ambit of their personal pursuits,” the state-action requirement “protects a robust sphere of individual liberty” for those who serve as public officials or employees.

The dispute between Lindke and Freed illustrates this dynamic. Freed did not relinquish his First Amendment rights when he became city manager. On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” This right includes the ability to speak about “information related to or learned through public employment,” so long as the speech is not “itself ordinarily within the scope of [the] employee’s duties.” Where the right exists, “editorial control over speech and speakers on [the public employee’s] properties or platforms” is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own.

So Lindke cannot hang his hat on Freed’s status as a state employee. 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. Categorizing conduct, therefore, can require a close look.

III

A close look is definitely necessary in the context of a public official using social media. There are approximately 20 million state and local government employees across the Nation, with an extraordinarily wide range of job descriptions—from Governors, mayors, and police chiefs to teachers, healthcare professionals, and transportation workers. Many use social media for personal communication, official communication, or both—and the line between the two is often blurred…

… For the reasons we explain below, 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. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A

The first prong of this test is grounded in the bedrock requirement that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” An act is not attributable to a State unless it is traceable to the State’s power or authority. Private action—no matter how “official” it looks—lacks the necessary lineage…

Lindke’s focus on appearance skips over this crucial step. He insists that Freed’s social-media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. But Freed’s conduct is not attributable to the State unless he was “possessed of state authority” to post city updates and register citizen concerns. If the State did not entrust Freed with these responsibilities, it cannot “fairly be blamed” for the way he discharged them…

Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed’s bailiwick. For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority—because he had none. For state action to exist, the State must be “responsible for the specific conduct of which the plaintiff complains.” There must be a tie between the official’s authority and “the gravamen of the plaintiff ’s complaint.”

To be clear, the “[m]isuse of power, possessed by virtue of state law,” constitutes state action… To misuse power, however, one must possess it in the first place.

Where does the power come from? Section 1983 lists the potential sources: “statute, ordinance, regulation, custom, or usage.” Statutes, ordinances, and regulations refer to written law through which a State can authorize an official to speak on its behalf. “Custom” and “usage” encompass “persistent practices of state officials” that are “so permanent and well settled” that they carry “the force of law.” …

Determining the scope of an official’s power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage. In some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially. For example, state law might grant a high-ranking official like the director of the state department of transportation broad responsibility for the state highway system that, in context, includes authority to make official announcements on that subject…

In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.

B

For social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it. State officials have a choice about the capacity in which they choose to speak. “[G]enerally, a public employee” purports to speak on behalf of the State while speaking “in his official capacity or” when he uses his speech to fulfill “his responsibilities pursuant to state law.” If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.

Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shared that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor…

The context of Freed’s speech is hazier than that of the hypothetical school board president. Had Freed’s account carried a label (e.g., “this is the personal page of James R. Freed”) or a disclaimer (e.g., “the views expressed are strictly my own”), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal. Markers like these give speech the benefit of clear context: Just as we can safely presume that speech at a backyard barbecue is personal, we can safely presume that speech on a “personal” page is personal (absent significant evidence indicating that a post is official). Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision (e.g., a “City of Port Huron” Facebook page) or is passed down to whomever occupies a particular office (e.g., an “@PHuronCityMgr” Instagram account). Freed’s page, however, was not designated either “personal” or “official,” raising the prospect that it was “mixed use”—a place where he made some posts in his personal capacity and others in his capacity as city manager.

Categorizing posts that appear on an ambiguous page like Freed’s is a fact-specific undertaking in which the post’s content and function are the most important considerations. In some circumstances, the post’s content and function might make the plaintiff’s argument a slam dunk. Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech “relate[d] to his public employment” or “concern[ing] information learned during that employment.”

Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials, too, have the right to speak about public affairs in their personal capacities…

One last point: The nature of the technology matters to the state-action analysis. Freed performed two actions to which Lindke objected: He deleted Lindke’s comments and blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook’s blocking tool highlights the cost of a “mixed-use” social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.

*   *   *

The state-action doctrine requires Lindke to show that Freed (1) 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. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

It is so ordered.