Supreme Court Addresses When Government Employees’ Social Media Accounts are State Action (Lindke & Garnier)

[This post got stuck in my drafts folder…sharing it now for completeness]

I see many cases against government employees for posting and moderating content on social media. The topic is a doctrinal morass because many details can affect the analysis. Who set up the account? Were they employed by the government at the time? Even if the account was set up by the accountholder, do government employees have access to and actually use the account? Does the accountholder use other accounts that are more clearly related to their government work or political campaigning? Is the account “public” or “private” in terms of reader access? What topics does the account discuss? How does the accountholder self-describe the account? What actions does the social media service permit an accountholder to take in response to accessing and replying to content, and which of those actions did the accountholder take? Why did the accountholder take the actions it took? Does the accountholder have a blocking or removal policy, and was it followed? How do those policies interplay with the social media’s content moderation policies?

Given all of these variables, the Supreme Court cannot possibly provide a single test to resolve every case over government employees using social media. Still, I was hopeful we might get some clarity when the Supreme Court took two cases with different facts and divergent lower court outcomes. Instead, the Supreme Court gave us only the barest-bones outline of a legal test that answers virtually no question that matters, so the lower courts will reach heterogeneous results and the issue will inevitably make its way back to the Supreme Court again.

The Supreme Court’s Test

The court unanimously holds:

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

Some problems: First, the court talks about attributing “speech” to the government, when the actual issue is whether an accountholder’s account blocks or content removal constitute an impermissible restriction on third-party speech. Second, the court doesn’t address the forum analysis, i.e., whether the social media account is a designated public forum, a limited public forum, or not a public forum at all. How does this newly articulated test interplay with that venerable doctrine?

The test seeks to balance competing interests, especially the blurred lines between our private and professional lives. Government “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…Freed did not relinquish his First Amendment rights when he became city manager.”

There will not be any easy answers: “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.”

The court then explains the two factors in its test.

Actual Authority

With respect to authority, the court says the account’s appearances don’t matter. If a government official identifies themselves as such on their account, but lacks the authority to act on behalf of the state, there is no state action. “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.”

The court gives an example:

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

Notice the court’s use of slippery words like “bailiwick” and “portfolio.”

So…where is a government official’s “authority” codified? The court says: “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.”

Doesn’t this ensure many fact disputes over actual or apparent authority? I think the answer is yes:

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.

Clearly, the latter paragraph restricts the scope of claims. The court not only wants some concrete source of authority to “speak for the state,” but the authority must be in written law or “longstanding” custom (how long? How well-established? TBD). Nevertheless, does this clarify things for, say, elected officials? They nominally have a lot of authority to “speak for the State”–that’s why they were elected.

And how about a “city manager”? The court started with the example of a city manager publicly opining on public health topics on social media. Isn’t that squarely in the zone of things that city managers have the authority to publicly address? We’ll find out on remand.

Purported Exercise of that Authority

The court starts with a broad principle:

State officials have a choice about the capacity in which they choose to speak…If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.

This doesn’t answer many questions because of the blurred lines between the private and public lives of many government officials. For example, if a police officer expresses racist views on social media, this may be their own speech–but it’s still disqualifying for their job, which necessitates public trust. As another example, a politician running for office treats everything as a part of the job, including their private lives (think about how politicians tout their family) and the private lives of their rivals. So the idea that the speech is “in furtherance” of official responsibilities ought to significantly narrow the potential claims, but more likely it invites fact disputes.

The court provides some attempted guardrails, including how the government official’s account self-identifies:

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…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.

Can we really assume that accounts are personal because they are self-identified as such? Government officials can make that self-interested representation with absolutely no downside. Why wouldn’t every government official immediately add that disclaimer? It will get the benefit of the court’s “heavy presumption” that it’s true, even if it’s not. I hope the lower courts challenge that “heavy presumption” because it’s unwarranted and easily gamed.

The court partially addresses this concern in a footnote:

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.

These examples don’t help very much. I agree with the court that the first two examples should be considered state action, but the last sentence again gives too much deference to self-interested representations (and saying it appears on a “personal page” sidesteps the key question).

As applied to the defendant in this case, the court simply emphasizes that all facts must be considered:

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.

The court concludes by noting the differences between blocking accounts and deleting comments:

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.

Just use the mute button FFS.

The court remands the Sixth Circuit appeal to reconsider the case in light of its newly articulated “test.”

The O’Connor-Ratcliff Opinion

In a short and non-substantive opinion, the court also remands the Ninth Circuit appeal to reconsider it as well.

Implications

Practical Takeaways. This opinion suggests several immediately implementable action items:

• government officials should label all of their social media accounts “personal,” whether it’s true or not.
• where possible, government officials should link to third-party content saying what they want to say, rather than post their own.
• government officials should not allow other government employees to access or manage their accounts, though campaign staff are seemingly free to do so.
• government officials shouldn’t block other accounts, but apparently it’s less legally risky to delete individual comments.

If these tricks work, they will encourage form over substance despite the Supreme Court’s express instructions.

Implications for the Private Sector? The court’s opinion focuses on the unique attributes of government speech. However, I wonder if courts will find this opinion helpful when trying to sort business from personal accounts? Revamping the holding, imagine if the court was saying:

We hold that such speech is attributable to the [business] only if the [employee] (1) possessed actual authority to speak on the [business’] behalf, and (2) purported to exercise that authority when he spoke on social media

All of the evidentiary standards, like how the account is labeled and if there’s codification for the employee’s right to speak on behalf of the employer, could also be applied. But the test wouldn’t answer the more common dispute: when the employee and employer are tussling over control of an account.

Assessing Winners and Losers. A recap of winners and losers from these rulings:

• Winner: government officials. The court gave a hard shove in favor of defendants, who naturally will win more cases as a result.
• Loser: the court system. The opinion sets up more fact questions that will make it harder for courts to dismiss cases early.
• Loser: the Supreme Court. They dodged the hard issues in the Trump case, then they mostly dodged the same hard issues here. Until they provide more clarity, this issue will keep hitting the Supreme Court’s docket.
• Loser: the public. It’s easy to lose sight of the stakes here. Government officials want the freedom to spread propaganda and self-promotional material without accountability. Having their messages filtered through the traditional media ensures that they will be fact-checked and subject to bothsiderism. But government officials speaking directly with their constituents, with the ability to screen out any critical online remarks, entrenches their power. The Supreme Court’s thumb on the scale favoring government officials who misuse their megaphone, combined with the enhanced megaphone provided to incumbents by virtue of the office, will only further encourage abuses that ultimately undercut our democracy.

Case Citations:

Lindke v. Freed, 601 U.S. —- (March 15, 2024)

O’Connor-Ratcliff v. Garnier, 601 U.S. —- (March 15, 2024)