Today on Legalese we are discussing the cases of Lindke v Freed and O’Conner-Ratcliff v Garnier. Two cases the Supreme Court Announced on Friday which create a new legal Test for When a Government Official's Social Media Posts Are "State Action"
Greetings everybody and welcome back to Legalese. Today we have the first “wrap-up” video of my Supreme Court Roundup. If you’re new to my channel…. First of all welcome. This is a podcast where we are going to be discussing all things constitutional law, as well as current events in other areas of law politics and culture. You can find out more about us by going to our webpage and signing up for our newsletter.
Second, if you are new to my channel. The Supreme Court Roundup is a list of cases I choose every term for the Supreme Court that I find especially interesting or important for one reason for another and we do a deep dive into every aspect of these cases every step of the way. My wrap up videos consist of us going through the final decision issued by the Court in those cases we have been following and today, this is my very first wrap-up video. The Supreme Court has been noticeably and unusually slow in getting opinions out this term. But it is what it is. So heading on over to my handy and dandy 2023-2024 term case load list, the count is three cases whose oral arguments are still pending (although by the time I get this video out, I’m pretty sure Murthy and Vullo will have been argued, as they are scheduled for Monday March 18th. And then Gonzalez v Trevino will be argued just two days later on Wednesday March 20th.
But at least at time of recording the count is, 3 cases pending, 10 argued but not decided, and as of last Friday, two decided. So, that must mean today we are talking about O’Conner-Ratcliff v Garnier and Lindke v Freed…. Though you may have already guessed those were the cases we would be discussing today based on the fact that during my cold open I said we would be talking about Lindke and O’Conner-Ratcliff…. If your asking why the title page only lists Lindke v Freed, that will all make perfect sense in just a minute.
So let’s start with a quick refresher on precisely what these cases were about
Both cases bear on when a government official's comment deletion or blocking decisions may violate the First Amendment. Specifically these issues with these cases was that they were actions being taken on an individual’s ostensibly personal social media profile page. But the claims against them were that they used their personal pages to discuss information relevant to their government job and that that occasional usage made these pages examples of government speech and their comment deletion and blocking a state action.
The Supreme Court on Friday ruled that public officials who post about topics relating to their work on their personal social media accounts are acting on behalf of the government, and therefore can be held liable for violating the First Amendment when they block their critics, but only when they have the power to speak on behalf of the state and are actually exercising that power.
The court’s decisions came in a pair of cases, involving local officials in California and Michigan who blocked constituents who made repetitive and critical comments on their personal social media accounts. In O’Connor-Ratcliff v. Garnier, the U.S. Court of Appeals for the 9th Circuit ruled that two school board members violated the First Amendment when they blocked two parents from their personal Facebook and Twitter accounts, which they used to provide information about the board and its work. The court of appeals reasoned that there was a “close nexus between the Trustees’ use of their social media pages and their official positions.”
But in Lindke v. Freed, the U.S. Court of Appeals for the 6th Circuit ruled that because James Freed, the Port Huron city manager, maintained his Facebook page on his own rather than as part of his job, he was not acting as a government official when he blocked a city resident – and therefore there was no First Amendment violation.
In a unanimous decision on Friday by Justice Amy Coney Barrett, the justices sent Freed’s case back for another look. Barrett acknowledged that the question before the court was a “difficult” one, “especially in a case involving a state or local official who routinely interacts with the public.” Although such officials can act on the government’s behalf, she reasoned, “Freed did not relinquish his First Amendment rights when he became city manager.”
Instead, Barrett explained, a government official’s social media posts can be attributed to the government only if the official had the authority to speak on behalf of the government and was exercising that power when he created the social media post at the center of the dispute. In a case like Freed’s, Barrett continued, involving a social media page with both personal and official posts, making such a determination will require “a fact-specific undertaking in which the post’s content and function are the most important considerations.”
Barrett also cautioned that the “nature of the technology matters” when determining whether an official acted on behalf of the government: Although deleting comments allows an official to target only personal posts, blocking someone from a social media page that contains both personal and official posts could also prevent someone from commenting on official posts. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability,” she warned.
In a brief unsigned opinion that followed Barrett’s decision in Freed’s case, the justices sent O’Connor-Ratcliff back to the 9th Circuit for it to take another look using the new test.
From Justice Barrett's unanimous opinion this morning in Lindke v. Freed:
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….
The Court began with the familiar principle that the First Amendment applies only to government action, not private individuals' action. There's little controversy that social media pages run by government entities (e.g., by city councils, school boards, executive agencies, and the like) involve government action. But individual officials are both individuals and officials, so the question is which hat the person is wearing while running a social media page. Here is how the Court analyzed this:
[S]tate or local official[s] who routinely interact[] with the public … may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But … [while they] 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….
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….
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…. [When the challenged conduct "entail[s] functions and obligations in no way dependent on state authority," state action does not exist….
[Lindke] 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. Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage.
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." …
Section 1983 lists the potential sources [of official authority]: "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."
So a city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements. He would also have that authority even in the absence of written law if, for instance, prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager's power to do so has become "permanent and well settled." And if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.
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.
At the same time, courts must not rely on "'excessively broad job descriptions'" to conclude that a government employee is authorized to speak for the State. The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.
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….
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 shares 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. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board president.
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 barbeque 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.
{An official cannot insulate government business from scrutiny by conducting it on a personal page. The Solicitor General offers the particularly clear example of an official who designates space on his nominally personal page as the official channel for receiving comments on a proposed regulation. Because the power to conduct notice-and-comment rulemaking belongs exclusively to the State, its exercise is necessarily governmental. Similarly, a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page. By contrast, a post that is compatible with either a "personal capacity" or "official capacity" designation is "personal" if it appears on a personal page.}
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. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.
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.
One technical but interesting note is the way that the Court ends its opinion in Lindke:
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.
One thing that the Court commonly does when it announces a new test that might or might not be consistent with the lower court's opinion is to (1) vacate and (2) remand for proceedings consistent with the Supreme Court's opinion. This might well result in the original judgment being reinstated, but the judgment is vacated first, and then the lower court figures out what to do. But notice that the Court does not quite do that here—here it vacates the lower court's judgment only "to the extent that [the Court's] test differs from the one applied by the Sixth Circuit."
So what has been vacated? Is this a partial vacatur? That is, is the Court saying that the lower court's judgment is only partly vacated? It makes sense to partially vacate an opinion, but I am not sure how the Court could only partly vacate a judgment. The Sixth Circuit's judgment was the affirmance of a district court's grant of summary judgment to the defendant. If the Court envisions a partly-vacated-partly-affirmed-affirmance it might thrust us into the puzzle about exactly what a "judgment unit" is, as discussed here by Richard Re.
Or is this an ambiguous or conditional vacatur? That is, I take it the Supreme Court might be saying that it isn't sure whether the lower court's judgment needs to be vacated, because it isn't sure exactly what the Sixth Circuit's test is. (Or perhaps different justices who joined the unanimous majority read the Sixth Circuit's test differently, even as they all agree what the test should be.)
On this view when the Sixth Circuit gets the case back, they first need to make a threshold judgment about whether their own judgment has been vacated, and then if the judgment has been vacated the panel needs to redo the analysis under the new test. I understand how this works, but it does have the funny feature of effectively delegating to the lower court the task of deciding what the mandate of the higher court has been. As a practical matter that may be perfectly straightforward, but as a formal matter it seems odd and not something I'd seen before. And in future cases ambiguous or conditional vacaturs could be much more interesting and even mischief-making.
Again, as a practical matter I'm sure this will work out straightforwardly on remand, but I wonder whether we will see more "To the extent that X, we vacate/reverse" decretal language in the future.