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The United States Supreme Court issued a unanimous decision on March 15, 2024, in Lindke v Freed, ___US___, 2024 U.S. LEXIS 1214 (2024). This opinion helps shed light on when and how the public has First Amendment rights under the United States Constitution to engage in social media posts related to municipal business on individual social media accounts (Facebook profiles, X/Twitter accounts, etc.) of municipal employees and officials. Interestingly, the case at issue involves a city in Michigan, and whether that city manager could delete comments or block certain individuals on his Facebook profile. This E-Letter outlines the Freed case and provides tips for township officials and employees to avoid liability related to individual social media accounts.

Lindke v. Freed – The Story

As explained above, the United States Supreme Court analyzed whether the city manager could manage his Facebook profile to limit participation on it from a member of the public by deleting comments and blocking the plaintiff from the profile.

Interestingly, the city manager created a Facebook profile around 2008 while he was in college. Originally the Facebook profile was a traditional profile, requiring persons to “friend” the manager to be able to engage with his posts (e.g., comment on them). Due to the manager hitting the limit for “friends” on Facebook, the profile became a “public” page, which allows anyone to view and comment on Facebook content without having to “friend” him.

The content varied. Much of the content involved personal matters such as pictures and posts about family. Some of the content related to posting general information such as sharing information during the height of the COVID-19 pandemic related to COVID hospitalization rates. The Facebook profile also included some content that appeared to be related to his position as city manager. Examples of such content included links to the city website and a city e-mail on the profile as well as posts on city issues such as receiving input on citizen surveys.

The plaintiff commented on some of city manager’s posts on Facebook. Many would characterize the content of these comments as “negative comments” and examples include calling the city’s COVID-19 pandemic response “abysmal” and criticizing the activities of city employees and elected officials.

Due to the content of the comments, plaintiff’s comments were initially deleted. Then the city manager blocked the plaintiff of Facebook so he could no longer interact on the profile by commenting but could still view the profile. In response to the deletion of comments and blocking, plaintiff sued under 42 USC 1983 alleging that the manager violated his First Amendment rights to free speech on a public forum.

Lindke v. Freed – The Law

In the Freed case, the Supreme Court addressed the novel issue as to how individual social media accounts that may have content related to someone’s “personal” and “governmental” life intersect with each other. The analysis of this issue, among others, was crucial for the Supreme Court to establish a test to determine whether a social media account is truly a “public forum” like a sidewalk where the public can exercise their rights to freedom of speech under the First Amendment and comment about various issues.

Ultimately, the Supreme Court remanded the Freed case back to lower courts to address its facts utilizing the new test it established. The Supreme Court’s new test has two prongs to determine whether an individual social media account could be considered a “public forum,” and if blocking/deleting comments could be improper state action (all references to “the state” generally mean “the government”), restricting freedom of speech. The Supreme Court held that a public official/employee’s social media activity would only constitute state action if the individual (1) possessed actual authority to speak on the state’s behalf, and (2) purported to exercise that authority when they spoke on social media.

For purposes of whether an official/employee possesses actual authority to speak on behalf of the state, the Supreme Court inferred that some official action by a municipality or state law would have to be necessary to grant explicit authority to an individual to share municipal information via social media. The Court further clarified it is not enough for a social media account to “look official” (e.g., list municipal information) to possess such actual authority. It also cautioned against “broad job descriptions” from being enough to find an individual who has actual authority from a municipality to speak on its behalf on social media.

In addition to needing actual authority for social media activity to constitute state action, the Supreme Court also noted that a public official must purport to exercise express authority to speak on behalf of a municipality when they post on social media to be enough of a state link to allow a defendant to pursue rights violations under 42 USC 1983. For example, if a social media page contains a disclaimer such as “this is the personal page of [employee or official name] and is not intended to be official content from the Township,” that disclaimer will suggest an employee/official is not purporting to speak on behalf of a municipality. However, the Court reasoned case-by-case factors such as whether other governmental employees made certain posts on a social media page may strongly indicate purporting to speak on behalf of the state when posting on social media.

Last, the very end of the opinion makes a direct statement about how blocking individuals on a social media account versus deleting comments may make it easier for a plaintiff to prove their case. Because blocking will prohibit a member of the public from commenting on any social media posts, when courts apply the two-prong test above (to determine if there is a sufficient link to state action to pursue claims for violations of First Amendment rights), courts would have to apply the test to any post made on a social media profile (unlike deleting comments, which would apply to just certain posts). Accordingly, there is a higher risk of potential state interference with First Amendment rights if a township official blanketly blocks a resident from commenting or interacting with them on a social media profile.

Five Tips to Limit Individual Social Media Liability

Given how the Freed case noted how individual use of social media accounts by township employees or officials could constitute state action under certain circumstances and how deleting comments/blocking comments could give rise to First Amendment violations, the below tips intend to help township officials and employees limit their potential liability regarding individual social media use. Specifically, the tips below mainly provide strategies to avoid linking individual social media pages of township officials/employees to “official” township/state action (thereby not allowing claims under 42 USC 1983).

1. Use a Disclaimer. The Freed case shows the Supreme Court will presume any social media account that has a disclaimer or descriptor indicating that such an account is for “personal use” and not an official account associated with a Township is not purported to be for official township/state action; therefore, limiting potential liability for blocking individuals/deleting comments.

2. Use “Official” Accounts to Share Township Announcements. To avoid tying personal accounts to official “state action” and running the risk of interfering with freedom of speech rights by managing who can participate on an individual page, a township official or employee could consider having all official township announcements made on “official” township social media accounts. Moreover, a township could also consider adopting a social media policy that expressly states that “official” social media channels do not include individual social media profiles. Townships may also want to create job descriptions noting who at the township may post on social media on a township’s behalf.

3. Utilize Personal Account on Social Media Platforms. Although not necessarily mentioned in the Freed opinion, there may be some benefit to “de-link” official state/township action from an individual social media page if an individual uses a social media profile option intended for individuals (and not for public figures). For example, using the traditional Facebook profile for individuals rather than a public page anyone can follow may suggest a Facebook profile is not intended to officially disseminate information to the public on behalf of a township.

4. Avoid Deleting Comments and Blocking (If Possible). Although these strategies are intended to avoid linking a personal social media account to official township action, an extremely cautious approach to avoid liability would be for township officials/employees to consider not deleting comments on posts specifically related to township news and announcements and not blocking members of the public on social media accounts. This strategy may be too burdensome for the average township official/employee, but if an official has a “public” profile that consistently posts about township business, this strategy could be considered on that particular page to limit potential liability. Larger public-facing profiles could also turn off comments for any user.

5. Limit Township Ties on a Social Media Page. To show a social media account is intended to be personal and not an official account, a Township employee/official may want to consider limiting information related to official Township business on the page. For example, individuals may want to consider not posting work e-mails, their position titles, and Township phone numbers on an individual social media page.

We hope you found the analysis above related to the new United States Supreme Court opinion on local government social media use and liability informative. As always, please do not hesitate to contact our office if you have any questions or concerns about how social media use may impose legal liability on your Township.

By Kyle A. O’Meara

This publication is intended for educational purposes only. This communication highlights specific areas of law and is not legal advice. The reader should consult an attorney to determine how the information applies to any specific situation.