On March 15, 2024, the Supreme Court of the United States ruled that state officials may be sued in some circumstances where they act in their official capacity on social media.
Applying the state-action doctrine, the Court ruled on Lindke v. Freed, No. 22-611, 2024 U.S. LEXIS 1214 (Mar. 15, 2024), a case arising from a public official’s act of deleting comments and blocking profiles from his Facebook page.
Facts of the Case
Around 2008, James R. Freed created a private Facebook profile that was later changed to a public page. By changing the status of his account, Freed permitted anyone to view and comment on his posts. In 2014, Freed updated his page to reflect his position as City Manager of Port Huron, Michigan.
During this time, Freed posted about personal and work-related matters. He also responded to comments and deleted those that he considered “derogatory” or “stupid.” Kevin Lindke expressed his displeasure with the city’s approach to the COVID-19 pandemic by commenting on Freed’s posts. Freed deleted Lindke’s comments and blocked him from commenting on his profile.
The Lawsuit
After being blocked, Lindke sued Freed for the deprivation of his rights pursuant to 42 U. S. C. §1983. Lindke alleged that Freed violated his First Amendment rights, because he restricted Lindke’s right to comment on a public forum, i.e., Freed’s Facebook page.
As it pertains to Freed’s Facebook page, the Supreme Court questioned whether he was acting as state official engaged in state action or as a private citizen.
The Supreme Court vacated the Sixth Circuit Court of Appeal’s order, which found in favor of Freed, and remanded the case for furthering proceedings. Therefore, there is no explicit answer at this time as to whether Freed’s actions on Facebook constituted state action.
School Officials’ First Amendment Rights
Although public officials can act on behalf of the state, they are also private citizens with constitutional rights. According to the Supreme Court, Freed did not relinquish his First Amendment rights when he became City Manager. Therefore, if it is determined that Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights; rather, Freed merely exercised his own.
State Action Doctrine
The Supreme Court discussed the state-action doctrine, which states that a public official’s social-media activity constitutes state action only if the official (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.
The Supreme Court explained that Freed’s conduct is not attributable to the state unless he had the authority, rooted in law or past practice, to post what he did. Further, for Freed’s actions to constitute state action, he must have purported or claimed that he was exercising his official authority.
Concurrent with Lindke, the Court handed down a percuriam opinion remanding a 9th Circuit case that had found two school board members engaged in State Action when they used their social media accounts in such as way as to create the appearance of state action.
On remand, the 9th Circuit was instructed to apply the standard the Supreme Court announced in Lindke. (O’Conner-Ratcliff v. Garnier)
Bottom Line For Schools
In its Opinion, the Supreme Court provided a hypothetical example related to school boards:
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.
Although each instance pertains to the same information, the school board president’s former action is state action, because it was done in his official capacity, whereas, his second action is private action, because it is done in his personal capacity.
Had Freed’s Facebook account carried a label or disclaimer, such as “This is the personal account of James R. Freed,” the Supreme Court states that he would be entitled to greater presumption that all of his posts were personal. By failing to do so, Freed’s page raised the idea that it was for “mixed use”; meaning the page was used in both his official and private capacities.
It is recommended that school officials not operate a “mixed use” account, because doing so triggers questions as to what capacity they are acting in. Further, schools officials are urged to keep their personal posts and matters within clearly designated personal social media accounts. Failing to separate personal and professional life on social media may expose school officials to greater liability.
KingSpry’s Education Law Practice Group is prepared to assist schools in navigating this issue. Schools with questions should contact their solicitor or a member of KingSpry’s Education Law Group.
