As we reported
last week, the U.S. Supreme Court recently issued opinions in two cases
involving First Amendment challenges to government officials’ use of social
media (Lindke v. Freed and O'Connor-Ratcliff v. Garnier). To follow up on that post, we want to provide more insight into the new
test the Supreme Court announced in Lindke v.
Freed and that will be applied by the respective Courts of Appeals when these two cases are remanded.
In Lindke v. Freed, the U.S. Supreme Court held that when
a government official posts on social media, the official's speech will only be
attributable to the government (and subject to First Amendment limitations), if
the official:
(1) has actual authority to speak on behalf of the government on a
particular matter; and
(2) purports to exercise that authority when speaking on
social media.
According to the Supreme Court, the new test reflects the foundational principle that “the Free
Speech clause only prohibits governmental abridgement of speech" so an individual who speaks in his or her capacity as a private person cannot be liable
for violating another's free speech rights under the First Amendment. The Supreme Court was clear that a government official does not
relinquish his or her own First Amendment rights when they take office or are
hired by the government. If an official speaks in his or her private capacity by
deleting comments and/or blocking users, that is not a violation of another's
First Amendment rights but, instead, it is an exercise of the official's individual free speech rights.
With respect to the first prong of the new test, the Supreme
Court considered the circumstances under which a government official
could have actual authority to speak on behalf of the government. Lindke involved a City Manager who deleted critical comments and blocked a user from
his personal Facebook page. The Supreme Court stated that the City Manager’s
status as a government employee, alone, was not conclusive on this first prong because “[t]he
distinction between private conduct and state action turns on substance, not
labels.” So, according to the Court, the person alleging a First Amendment violation must show a connection
between the City Manager's actual authority and his social media activity - and that connection must be something more than that the City Manager had some authority to communicate with residents. That "something more" needs to be tied to a statute, ordinance, regulation, or even a well-settled custom establishing the City Manager's actual authority, and that established authority must be tied to the speech that allegedly violated the First Amendment.
The Supreme Court gave the following example: If the City Manager had posted about
restaurants with local health code violations and then deleted critical
comments from those posts, his actions would only be attributed to the City if
his formal role (by law or custom) included public health management or
regulation. If, on the other hand, the City Manager does not supervise or otherwise
contribute to public health initiatives for the City, his posts could not be
tied to the government where he had no authority to post in his official
capacity.
As to the second prong of this new test, the Supreme Court said that courts must look at whether the
challenged post was made in order to fulfill the government official’s formal responsibilities.
Because government officials and employees do not lose their individual rights
to free speech when they are elected, appointed, or hired by a government body,
the Court noted that it is important to distinguish circumstances where they speak for
themselves from situations where they speak on behalf of the government.
One way to make this distinction, according to the Court, is to assess
whether the social media page used by the government official is an official page or a personal page.
In many cases, whether a social media page is a personal page or a government page will be fairly easy to determine. Personal pages that include disclaimers such as "the views expressed are strictly my own" or "this is the personal page of John Smith" are entitled to a "heavy" presumption that the posts on that page are personal. On the other hand, a social media page that belongs to the government (an official City account), or passes down to whomever occupies a position (an official City Manager account) are accounts that would purport to speak on behalf of or for the government.
Here, the Court acknowledged that the challenged City Manager's page did not fall squarely into either of these examples - instead, the Court found it to be a "mixed-use" page where the City Manager posted both in his personal capacity and in his capacity as City Manager. According to the Court, applying this new test to a "mixed-use" page requires a fact-specific review of specific activities on that page in order determine whether a particular post or action was in furtherance of the official's personal capacity or his government capacity.
The Court gave an example of a mayor posting the following on the mayor's personal Facebook page:
Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.
The Court noted that this hypothetical post appears to invoke the mayor's actual authority, and if the mayor's personal page was the exclusive place this announcement was made, would likely fall into "state action" for First Amendment purposes. However, if the mayor had merely re-shared this information from the City's official Facebook page, it would be less likely to be seen as state action.
Based on the analysis in the Supreme Court's Lindke opinion, government officials and employees might take away the following:
(1) the Court did not distinguish between public officials
and public employees in establishing its new test;
(2) the Court rejected an argument that the official's page must be "predominantly" used for government purposes to be subject to the First Amendment;
(3) the Court also rejected an argument that any government-related speech on a personal page will convert a personal page into a government page;
(4) the mere fact that an account-holder is a government official or employee does not, on its own, mean that their social media page or activities are subject to the First Amendment;
(5) a "mixed use" page where a government official or employee acts both in his or her personal and government capacities can be the most risky type of account as the Court may have to engage in a post-by-post analysis to determine whether the official's or employee's actions have implicated another's First Amendment rights;
(6) adding disclaimers to personal pages that the views express on the personal page are not the views of the government and that the pages are purely for personal use will provide some presumption that the page is a personal one, although it is not determinative and can be rebutted depending on the nature of the activities on that page; and
(7) the Court acknowledged that an official who fails to keep his or her personal page separate from his or her government social media actions exposes himself to greater potential liability. It is particularly problematic if an official blocks a user from commenting on his personal posts because on a "mixed use" page, blocking a user would extend to the entire site, including the user being prevented from commenting on government-related posts on that type of mixed use page.
Based on the Court's analysis and the impact of this new test, government officials and employees may want to consider maintaining separate personal and official social media pages - a best practice we have shared on this site in the past.
Post Authored by Erin Monforti & Julie Tappendorf, Ancel
Glink
