On March 15, the United States Supreme Court issued an opinion clarifying the standard used to determine whether a public official’s use of a personal social media account violates the First Amendment when she deletes comments or blocks another user from posting.
In Lindke v. Freed, a unanimous Court held that an official’s deletion or blocking of comments by another social media user on a “mixed use” account – a non-official account nevertheless sometimes used to communicate official matters and sometimes for personal matters – constitutes action by the government, and not in her capacity as a private citizen, only if the official both “(1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when [she] spoke on social media.” Only where the official both actually has and appears to have authority to speak for the government she served on the matter in question, then, can her action deleting or blocking particular comments or accounts be “fairly attributable” to the government, and thus a violation of the censored citizen’s First Amendment rights.
Krevolin & Horst offers these additional five points of emphasis for its clients who are or aspire to be public officials, or who otherwise are or could be characterized as exercising state power.
- Public officials acting in their official capacity court potential liability for violating First Amendment rights, even if acting on their personal page, where particular announcements or speech falls within part of the job the government has “actually … entrusted the official to do.” The Court ruled that “[t]he alleged censorship must be connected to speech on a matter within” the official’s “bailiwick.” Put differently, to find the government responsible for the deletion or blocking of contributions to a public official’s mixed use social media account, the government must be responsible “for the specific conduct of which the [user] complains.” This recognizes, the Court said, that public officials do “not relinquish [their] First Amendment rights when” beginning public service, including on matters of public concern.
- Disclaimers and labels on personal accounts provide “clear context” indicating the content is, in fact, personal in nature. The Court specifically highlighted that accounts carrying disclaimers such as “the views expressed are strictly my own,” or labels such as “this is the personal page of Krevolin A. Horst” are “entitled to a heavy … presumption,” absent persuasive evidence that the account labeled “personal” is nevertheless being used by its owner for official business or is the exclusive forum for speaking or listening to public business. This in turn provides public officials more freedom to moderate, block, and ban users on a personal social media account or page, thus exercising their own First Amendment rights without concern for their account being converted into a public forum.
- Even-handed application of any policy remains important. As a reminder, First Amendment law tends to show the most hostility for censorship or content moderation discriminating on the basis of viewpoint. Public officials therefore should continue to set and use rules that apply equally to everyone and to statements representing all views within the bounds of reasonable public discourse – or to disable comments entirely if the social media platform in question permits.
- The safer course is to separate the online discussion of official and personal business. The Supreme Court has now clarified that “[t]he distinction between private conduct and state action turns on substance, not labels.” This often requires a “close look” when it comes to “a public official using social media” because sorting out which posts contain or invite official business from those that are purely personal on a mixed use social media account necessarily “is a fact-specific undertaking in which the post’s content are function are the most important considerations.”
- Blocking is a blunter instrument than deleting individual comments – so blocking users entirely carry greater risk of alleged or actual liability. Accordingly, the type of social media platform and the options available for using a particular technology matters to the analysis.
As this case and other recent and pending cases at the Supreme Court demonstrate, disputes concerning the intersection of social media, the Internet, government action, and First Amendment rights remains unsettled area of law. Krevolin & Horst attorneys can help you sort through your approach to avoid or mitigate litigation risk in education, political, and other applicable contexts.
Please contact us if we can help.
