Two opinions from the U.S. Supreme Court (SCOTUS) were issued last week dealing with public officials’ use of social media. In both cases, Lindke v. Freed and O’Connor-Ratcliff v. Garnier, the question before the Court was whether actions taken by public officials to block users from their personal social media pages or delete comments violated the First Amendment rights of the plaintiffs.
In a unanimous decision the Court held that a public official who prevents someone from commenting on the official’s social media page engages in state action under the Civil Rights Act only if the official 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 noted that in cases involving both personal and official social media pages, “a fact-specific undertaking in which the post’s content and function are the most important considerations.”
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, known for leaving critical remarks, from their personal Facebook and Twitter accounts that board members 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.”
However, in Lindke v. Freed the U.S. Court of Appeals for the 6th Circuit ruled that a city manager in Michigan did not violate a resident’s First Amendment rights when he blocked the resident on social media and deleted some of the resident’s comments that complained about the city manager’s handling of the COVID-19 pandemic.
Both matters were remanded to the lower courts for review using the test set out by the Court.
In light of the SCOTUS decision, municipal officials are reminded to review how they use their social media accounts. It is important to maintain separate accounts for personal and public use. As the Court warns, “[a] public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”
Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481, x137.