Legal intern Danya Hajjaji was the lead author of this post.
The Sixth Circuit must carefully apply a new “state action” test from the U.S. Supreme Court to ensure that public officials who use social media to speak for the government do not have free rein to infringe critics’ First Amendment rights, EFF and the Knight First Amendment Institute at Columbia University said in an amicus brief.
The Sixth Circuit is set to re-decide Lindke v. Freed, a case that was recently remanded from the Supreme Court. The lawsuit arose after Port Huron, Michigan resident Kevin Lindke left critical comments on City Manager James Freed’s Facebook page. Freed retaliated by blocking Lindke from being able to view, much less continue to leave critical comments on, Freed’s public profile. The dispute turned on the nature of Freed’s Facebook account, where updates on his government engagements were interwoven with personal posts.
Public officials who use social media as an extension of their office engage in “state action,” which refers to acting on the government’s behalf. They are bound by the First Amendment and generally cannot engage in censorship, especially viewpoint discrimination, by deleting comments or blocking citizens who criticize them. While social media platforms are private corporate entities, government officials who operate interactive online forums to engage in public discussions and share information are bound by the First Amendment.
The Sixth Circuit initially ruled in Freed’s favor, holding that no state action exists due to the prevalence of personal posts on his Facebook page and the lack of government resources, such as staff members or taxpayer dollars, used to operate it.
The case then went to the U.S. Supreme Court, where EFF and the Knight Institute filed a brief urging the Court to establish a functional test that finds state action when a government official uses a social media account in furtherance of their public duties, even if the account is also sometimes used for personal purposes.
The U.S. Supreme Court crafted a new two-pronged state action test: a government official’s social media activity is state action if 1) the official “possessed actual authority to speak” on the government’s behalf and 2) “purported to exercise that authority” when speaking on social media. As we wrote when the decision came out, this state action test does not go far enough in protecting internet users who intereact with public officials online. Nevertheless, the Court has finally provided further guidance on this issue as a result.
Now that the case is back in the Sixth Circuit, EFF and the Knight Institute filed a second brief endorsing a broad construction of the Supreme Court’s state action test.
The brief argues that the test’s “authority” prong requires no more than a showing, either through written law or unwritten custom, that the official had the authority to speak on behalf of the government generally, irrespective of the medium of communication—whether an in-person press conference or social media. It need not be the authority to post on social media in particular.
For high-ranking elected officials (such as presidents, governors, mayors, and legislators) courts should not have a problem finding that they have clear and broad authority to speak on government policies and activities. The same is true for heads of government agencies who are also generally empowered to speak on matters broadly relevant to those agencies. For lower-ranking officials, courts should consider the areas of their expertise and whether their social media posts in question were related to subjects within, as the Supreme Court said, their “bailiwick.”
The brief also argues that the test’s “exercise” prong requires courts to engage in, in the words of the Supreme Court, a “fact-specific undertaking” to determine whether the official was speaking on social media in furtherance of their government duties.
This element is easily met where the social media account is owned, created, or operated by the office or agency itself, rather than the official—for example, the Federal Trade Commission’s @FTC account on X (formerly Twitter).
But when an account is owned by the person and is sometimes used for non-governmental purposes, courts must look to the content of the posts. These include those posts from which the plaintiff’s comments were deleted, or any posts the plaintiff would have wished to see or comment on had the official not blocked them entirely. Former President Donald Trump is a salient example, having routinely used his legacy @realDonaldTrump X account, rather than the government-created and operated account @POTUS, to speak in furtherance of his official duties while president.
However, it is often not easy to differentiate between personal and official speech by looking solely at the posts themselves. For example, a social media post could be either private speech reflecting personal political passions, or it could be speech in furtherance of an official’s duties, or both. If this is the case, courts must consider additional factors when assessing posts made to a mixed-use account. These factors can be an account’s appearance, such as whether government logos were used; whether government resources such as staff or taxpayer funds were used to operate the social media account; and the presence of any clear disclaimers as to the purpose of the account.
EFF and the Knight Institute also encouraged the Sixth Circuit to consider the crucial role social media plays in facilitating public participation in the political process and accountability of government officials and institutions. If the Supreme Court’s test is construed too narrowly, public officials will further circumvent their constitutional obligations by blocking critics or removing any trace of disagreement from any social media accounts that are used to support and perform their official duties.
Social media has given rise to active democratic engagement, while government officials at every level have leveraged this to reach their communities, discuss policy issues, and make important government announcements. Excessively restricting any member of the public’s viewpoints threatens public discourse in spaces government officials have themselves opened as public political forums.
