Executive Summary

In Lindke v. Freed, the United States Supreme Court adopted a two-part test to determine whether a public official’s conduct on social media rises to state action for purposes of 42 U.S.C. Section 1983 (“Section 1983”).

The Court evaluated the question of when social media use crosses the line from private action to state action, for which a public official can be held liable under Section 1983. The conclusion:

A public official who prevents someone from commenting on the official’s social-media page engages in state action under Section 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. (Lindke v. Freed pp. 1-2).

Contrary to hot takes on the Internet, this decision does not mean every elected official is liable for a Section 1983 violation if they block people on social media. If it did, SCOTUS would have said so instead of sending Garnier back to the Ninth Circuit for further proceedings consistent with the Lindke v. Freed test.

California School Boards Association (CSBA) characterizes this as a “resounding victory for school board members,” apparently pleased that elected officials can block members of the public in certain circumstances. Elected officials swear an oath to uphold the California Constitution and United States Constitution, and should endeavor to be as transparent and open as possible with the public. Just because you might not be liable for a 1983 violation if you block users does not mean it is a good idea. The right to criticize government is a fundamental principle in our free society.

1. What Elected Officials Need to Know

There is no bright line test to determine when a public official’s actions on social media rise to the level of a Section 1983 violation. A fact-specific inquiry is required. As a public official, you should err on the side of caution and transparency. Keep your social media accounts for personal and official business separate. Label them appropriately as “personal,” “elected official,” or whatever other accounts you may have (some may have separate accounts for a professional business). The best way to avoid liability is to refrain from blocking citizens on your official account.

After the decision came out, many people on the Internet concluded this decision meant it was open season on any elected official who blocks people on their social media accounts. This is not true. A case for deprivation of free speech rights under Section 1983 would be difficult to make if the public official is a member of an elected body and is not the person vested with authority to speak on behalf of the body. One could make the argument that the authority to speak is present in custom or practice, but it is by no means a slam dunk.

 2. What You Can do to Limit Your Liability

First, talk to your lawyer. This overview is not intended to replace legal advice from your attorney.

Keep your social media accounts for your public business and your personal and professional business separate, and make the separation clear with labels and descriptions in your account names and bios. Have one designated account for communicating with the public about public business. This account should not be made private, and you should not block people from this account.

Example: If you’re a city council member, have a city council member account where you only post about city council business. On Instagram, you can label this account as “elected official.” Any discussions you have about your city council’s business should be done on this account.

For your personal account, mark it “personal account” and state in your bio where people can find your public official account (if you have one). Do not discuss city business on this account. Don’t muddy the waters. Family, friends, sports, personal interests are all fair game. When a personal account is clearly labeled as such, it’s entitled to a heavy presumption that all of the posts there are personal. This account can be made private.

For your professional account, if you have one, clearly label it as such, and explain in your bio where people can find the official public business by tagging your public official account.

Do not make exclusive announcements of public business from your social media account. If you are making exclusive announcements for the public agency you are elected to represent on your social media, then there is a high likelihood you have satisfied the second part of the Lindke test: purporting to exercise authority to speak on the state’s behalf in the relevant social-media posts. Exclusive announcements should be made through official channels. If social media is the official channel, then you cannot block members of the public from that channel.

Note: Merely repeating or sharing otherwise available information is far less likely to be considered “purporting to exercise the power of his office.” Instead, it is much more likely private speech related to public employment or concerning information learned during that employment.

If you are an elected official and your agency policy expressly vests authority to speak on behalf of the agency in another person, then your communications are, arguably, not state action. One could make the argument that custom and practice give you actual authority to speak on behalf of the agency, but (1) if you are not making exclusive announcements, (2) if you’ve stated in your bio that you are not authorized to speak on behalf of your agency, and (3) you clearly label your accounts and separate personal from government business, there is a lower likelihood of liability under Section 1983.

Best practice, both for transparency and for legal protection, is to keep that official public business account open to the public, and not to block people from it.

Note: Under Lindke , a public official could arguably discuss personal or professional business in a post and block people from responding to that specific post without incurring liability, because there is not “actual authority to speak on the state’s behalf” on that matter. However, it’s not good practice, and when you muddy the waters by mixing personal and public business, you put yourself at greater risk.

Detailed Analysis

The United States Supreme Court granted certiorari in O’Connor-Ratcliff v. Garnier 601 U. S. ____ (2024) and in Lindke v. Freed, 601 U. S. ___ (2024), to resolve a Circuit split about how to identify state action in the context of public officials communicating with the public on social media. Because the approach that the Ninth Circuit applied in Garnier is different from the one SCOTUS elaborated in Lindke, SCOTUS vacated the judgment in Garnier and remanded the case to the Ninth Circuit for further proceedings consistent with the Lindke decision.

I. What is Section 1983?

Section 1983 is a federal statute that provides a private right of action for citizens to sue government officials when they deprive citizens of a federal constitutional or statutory right under color of state authority. This means if a government official deprives you of due process or free speech, for example, you can sue for damages and attorney’s fees under Section 1983.

Section 1983 protects against acts attributable to a State, not those of a private person. Because local governments are subdivisions of the State, actions taken under color of a local government’s law, custom, or usage count as “state” action for purposes of  Section 1983. (Lindke fn 1, citing Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 690–691 (1978)).  “State” action includes city and county governments as well as school districts.

II. Background on O’Connor-Ratcliff v. Garnier

In Garnier, where a plaintiff sued two school board trustees for blocking him on social media, the Ninth Circuit followed the Naffe v. Frey test to determine state action. That test provided a public official acts under color of law if she (1) “purports to or pretends to act under color of law”; (2) her “pretense of acting in the performance of [her] duties had the purpose and effect of influencing the behavior of others”; and (3) the “harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental status or to the performance of [her] duties.” (See O’Connor-Ratcliff v. Garnier 601 U. S. ____ (2024)). The Ninth Circuit found state action in Garnier based largely on the official “appearance and content” of the school board trustees’ pages. (Id.).

SCOTUS rejected the Ninth Circuit’s test for state action, vacated the decision, and remanded the case to the Ninth Circuit for further proceedings consistent with the Lindke v. Freed test. Now, a public official who prevents someone from commenting on the official’s social-media page engages in state action under Section 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. (Lindke, pp. 8, 9).

III. Background on Lindke v. Freed

In Lindke v. Freed, Freed was a city manager of Port Huron, Michigan. Freed blocked plaintiff Lindke and deleted Lindke’s comments. Lindke sued under Section 1983 for deprivation of his free speech rights. Freed, Lindke claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. The decision does not expand on viewpoint discrimination in the context of social media.

IV. Lindke Test Part 1: A Public Official Must Have Actual Authority to Speak on the State’s Behalf on a Particular Matter.

In order to find state action, the Court explained that a public official defendant must have actual authority rooted in written law or longstanding custom to speak for the State. (Lindke , p. 12). That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action. (Lindke , p. 12).

Plaintiff Lindke contended Freed’s social media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns. The Court disagreed, explaining that “Freed’s conduct is not attributable to the State unless he was ‘possessed of state authority’ to post city updates and register citizen concerns… If the State did not entrust Freed with these responsibilities, it cannot “fairly be blamed” for the way he discharged them.” (Lindke , p. 10)

To rise to a violation of Section 1983, the alleged censorship must be connected to speech on a matter within defendant public official’s “bailiwick” (one’s sphere of operations or particular area of interest). (Lindke, p. 10).

“For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority—because he had none. For state action to exist, the State must be “responsible for the specific conduct of which the plaintiff complains.” (Lindke, p. 10).

The potential sources of authority to speak on behalf of the state are: “statute, ordinance, regulation, custom, or usage.” (Lindke, p. 11, citing Section 1983). “Custom” and “usage” encompass “persistent practices of state officials” that are “so permanent and well settled” that they carry “the force of law.” Id.

The Court explained that a city manager like Freed would have actual authority to speak for the city in the following circumstances:

• if written law like an ordinance empowered him to make official announcements.
• in the absence of written law, if prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager’s power to do so has become “permanent and well settled.” (Lindke p. 11).

The Court continued, “if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.” (Lindke p. 11)

A grant of authority over particular subject matter may reasonably encompass authority to speak about it officially. For example, state law might grant a high-ranking official like the director of the state department of transportation broad responsibility for the state highway system that, in context, includes authority to make official announcements on that subject. (Lindke, p. 11). At the same time, courts must not rely on “‘excessively broad job descriptions’” to conclude that a government employee is authorized to speak for the State. Id. at 11-12).

1. Public Officials Don’t Lose Their First Amendment Rights When Elected

Contrary to Internet takes, the Court did not say an elected official always has actual authority to speak on the state’s behalf. A case-by-case, fact-based inquiry is required whether someone is elected or employed by a government agency. The Court remanded Garnier to the 9th Circuit to determine whether the school board trustees’ conduct amounts to state action. If the Court intended to rule that every elected official has actual authority to act on behalf of the state, then it would have said so, instead of remanding Garnier. The Court briefly touched on how the test would apply to elected officials in Lindke v Freed, in its discussion of when an elected official speaks in his personal capacity versus official:

“[A public official] might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities.” (Lindke at p. 14).

The Court reiterated that, “[w]hile public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.” (Lindke at p. 7). Public officials have the right to speak about public affairs in their personal capacities. (Id. at p. 14).

2. Why Actual Authority, not Appearance of Authority?

“Every §1983 suit alleges a misuse of power, because no state actor has the authority to deprive someone of a federal right. To misuse power, however, one must possess it in the first place.” (Lindke, p.11)

The conduct allegedly causing the deprivation of a federal right must be fairly attributable to the State. (Lindke at p. 9, citing Lugar v. Edmondson Oil Co., 457 U. S. 922, 937). If the State does not entrust a public official with certain responsibilities, the state cannot “fairly be blamed” for the way the official discharges them. (Id., p. 10).

The threshold inquiry to establish state action is not whether making official announcements could fit within a job description but whether making such announcements is actually part of the job that the State entrusted the official to do. Further, public officials have a First Amendment right to speak about public affairs in their personal capacities. (Lindke at 14). Plaintiffs must show that an official is purporting to exercise state authority in specific posts to ensure public officials do not lose their First Amendment rights. Exercising editorial control over speech and speakers on a public official’s platforms is part of the official’s First Amendment rights, and blocking users is an exercise of one’s First Amendment rights. (Lindke at pp. 7-8).

V. Lindke Test Part 2: A Public Official Must Purport to Exercise Authority to Speak on the State’s Behalf in the Relevant Social-Media Posts.

The second part of the Lindke test ascertains whether an official is speaking on behalf of the State or in his own voice in the relevant post. For social-media activity to constitute state action, an official must not only have state authority—he must also purport to use it. (Linkde, p. 12).

A a public employee purports to speak on behalf of the State while speaking in his official capacity or when he uses his speech to fulfill his responsibilities pursuant to state law. (Lindke, p. 12). If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice. (Lindke, p. 12).

The Court offered a hypothetical example of a school board president making an announcement at a school board meeting and later making the same announcement at a backyard barbeque with friends. The announcement at the school board meeting is state action taken in his official capacity as school board president; while the announcement at the barbeque is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. According to the Court, he invoked his official authority only when he acted as school board president at the school board meeting. (Lindke at. 12-13).

Freed’s conduct was not as clear cut. His social media page contained a mix of personal posts and posts about city business, and was not labeled “official” or “personal.” According to the Court, “[h]ad Freed’s account carried a label (e.g., “this is the personal page of James R. Freed”) or a disclaimer (e.g., “the views expressed are strictly my own”), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” (Lindke, p. 13).

On the flipside, public officials cannot insulate themselves from Section 1983 liability by posting government business on a page labeled “personal.” (Lindke, fn 2). For example:

“The Solicitor General offers the particularly clear example of an official who designates space on his nominally personal page as the official channel for receiving comments on a proposed regulation. Because the power to conduct notice-and-comment rulemaking belongs exclusively to the State, its exercise is necessarily governmental. Similarly, a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page. By contrast, a post that is compatible with either a “personal capacity” or “official capacity” designation is “personal” if it appears on a personal page.” (Id.).

Additional factors may aid in the analysis. For example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business. (Lindke, p. 14).

1. Content and Function Most Important

Posts appearing on an ambiguous “mixed use” page like Freed’s require a fact-specific undertaking in which the post’s content and function are the most important considerations. (Lindke, p. 13). A mayor announcing exclusively on his Facebook page that a particular ordinance will no longer be enforced is a clear example of the mayor purporting to exercise state authority in a post. (Lindke, p. 13). “The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty.” (Id.).

If the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. (Id.). Instead, it is much more likely that he is engaging in private speech related to his public employment or concerning information learned during that employment. (Id., citations omitted).

The Court warns, “[i]f page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” (Lindke, p. 15).

VI. Beware Hot Takes on the Internet

The Internet takes on this case oversimplify it by saying one can sue any public official who blocks them on social media. But in such a suit, the plaintiff would need to prove that the public official had actual authority to speak on behalf of the relevant government agency. If that official lacks actual authority, whether in written law or longstanding custom, then that official’s prevention of members of the public from commenting on his or her social media posts does not rise to state action under Section 1983. Further, even if the official has actual authority, the official must also purport to exercise that authority when speaking in the relevant social-media posts.

*This post is not legal advice. It is for public information purposes. Please consult your own attorney.*

Julie Hamill is an attorney with California Policy Center. She is the founder of Alliance of Los Angeles County Parents and a Palos Verde Peninsula Unified School Board Trustee.