On Friday, the U.S. Supreme Court warned public officials could get in trouble for blocking critics on social media.
The case arose after James Freed created a private Facebook profile before 2008, later converting his profile to a public “page.” In 2014, Freed updated his Facebook page to note his new job as city manager of Port Huron, Michigan, but still posted about his personal life. He also posted information related to his job, responded to comments on his posts, and occasionally deleted comments that he considered “derogatory” or “stupid.”
After the COVID–19 pandemic began, Freed posted personal and job-related posts related to it. Facebook user Kevin Lindke commented on some of Freed’s posts, saying he disagreed with the city’s COVID policies. At first, Freed deleted Lindke’s comments, and later blocked him from commenting. Lindke then sued, claiming Freed had violated his First Amendment rights and that he had the right to comment because the page was a public forum.
The District Court ruled for Freed in Lindke v. Freed; the Sixth Circuit affirmed the decision.
“[T]he Court warned that public officials face a high risk of liability when they operate a ‘mixed use’ social media page (i.e., posting both public and private topics) and block people from that page,” JDSupra.com noted.
The Supreme Court vacated the judgment of the Sixth Circuit and remanded the case for further proceedings, writing, “A public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 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 explained, “Section 1983 provides a cause of action against ‘[e]very person who, under color of any statute, ordinance, regulation, custom, or us- age, of any State’ deprives someone of a federal constitutional or statutory right. Section 1983’s ‘under color of” text makes clear that it is a provision designed as a protection against acts attributable to a State, not those of a private person.’”
“The Sixth Circuit held that an official’s activity is state action if the ‘text of state law requires an officeholder to maintain a social-media account,’ the official ‘use[s] . . . state re- sources’ or ‘government staff’ to run the account, or the ‘accoun[t] belong[s] to an office, rather than an individual officeholder.’ These situations, the Sixth Circuit explained, make an official’s social-media activity ‘fairly attributable’ to the State.”