The U.S. Supreme Court has agreed to hear two cases involving public officials who deleted comments and blocked users from their social-media pages. It will hear both cases during its next term, which begins in October 2023. The cases provide an opportunity to specify a test for deciding when a public official’s use of social media amounts to state action — the sort of action that can lead to liability for First Amendment violations. In choosing a state-action test, the Supreme Court will resolve a lopsided circuit split.
The test in the Second, Fourth, Eighth, Ninth, and Eleventh Circuits focuses on whether public officials cloak their social-media pages with the power and prestige of their offices and use them to communicate about their official duties. Courts in those circuits resist a rigid formula for determining when social-media use amounts to state action. They instead conduct a fact-intensive inquiry about how the official describes and uses the account, to whom account features are made available, and how the official and members of the public regard the account.
In Garnier v. O’Connor-Ratcliff, one of the two cases the Supreme Court will consider, the Ninth Circuit scrutinized two school-board trustees’ decisions to delete comments and eventually block users who posted long and repetitive responses on the trustees’ Facebook or Twitter posts. The Ninth Circuit held that both trustees engaged in state action. They identified themselves on their social-media accounts as government officials and showcased their official titles. One included her official school-district email address on her Facebook page’s contact section. The other described his Facebook page as his “official” school-board member page. Both used their social-media accounts to actively solicit feedback on school-district business, to publicize board meetings, and to encourage volunteering on various board committees. The Ninth Circuit held that those facts established a sufficient nexus to the trustees’ official positions to treat their social-media activity as state action.
The Sixth Circuit rejects a test focused on whether a social-media account has the trappings or appearance of an official, government-run account. In Lindke v. Freed, the second case the Supreme Court will consider, the Sixth Circuit adopted a test intended to provide clarity and predictability. In the Sixth Circuit, social-media use amounts to state action only if it is part of a public official’s actual or apparent duties or if the official could not use social media in the same way without the authority of public office.
Under the Sixth Circuit’s test, a public official’s social-media activity is less likely to qualify as state action — and thus less likely to trigger First Amendment liability. Social- media use will amount to state action if some law, regulation, or official job duty requires it. It will amount to state action if public resources are used in its operation. And it will amount to state action if the account belongs to the public office rather than the individual officeholder — an account like the @POTUS Twitter account that belongs to no individual and instead transitions from president to president over time. Under that test, the analysis does not turn on whether a page looks and feels like an official government account.
In Lindke, a city manager’s Facebook page described him as a “public figure,” listed his title as Port Huron, Michigan’s “Chief Administrative Officer,” listed the city’s website as his page website, listed an official city email address as the page’s contact information, and listed city hall’s address as his page’s address. And while the city manager posted many personal items on his page, he also posted about community events and the administrative directives he issued in his capacity as city manager. Under the test adopted in the five other circuits to consider the question, those facts likely would amount to state action. In the Sixth Circuit, they didn’t. No law, ordinance, regulation, or formal job duty required the city manager to maintain a Facebook page. No city funds or staff were used to maintain it. And the page belonged to the city manager personally, not to his office. So the Sixth Circuit held that the Facebook page was a personal one — meaning there was no state action and could be no First Amendment liability.
Depending on which test the Supreme Court adopts, and whether it finds state action under that test, it may also have an opportunity to address whether and how forum analysis applies to the interactive portions of a public official’s social media account. Most courts faced with that question have applied traditional or designated public-forum analysis in the social-media context. Although forum analysis is often nuanced, those courts have often held that blocking users or deleting comments violates the First Amendment.
Given the ubiquity of modern social media — and the attendant First Amendment issues — public entities and officials should monitor the Garnier and Lindke cases. Those interested in learning more about the First Amendment’s application to their own social- media use or that of their colleagues and employees can contact Donnie Morgan or a member of Taft’s Local Government practice.