In March, we reported
on two opinions issued by the U.S. Supreme Court in cases involving First Amendment
challenges to government officials’ use of social media on their personal social media accounts, including Lindke v.
Freed. In Lindke, the Supreme Court announced a two-part test
for establishing that an official’s actions on their personal social media acounts can be attributed to the government
(and subject to First Amendment limitations. In order to show that an
official’s social media activity on the official's personal social media account is subject to the First
Amendment, it must be shown that the official:
- has
actual authority to speak on behalf of the government on a particular matter;
and
- purports
to exercise that authority in the official's activities on social media.
The Lindke opinion was issued in response to a case challenging the social media activities of the City Manager of Port Huron, Michigan, who had deleted critical comments on his personal Facebook page that were left by an individual who was dissatisfied with the City’s handling of the COVID-19 pandemic. In addition to deleting the critical comments, the City Manager eventually blocked the critic from accessing his Facebook page altogether. The commenter sued the City Manager, claiming the deletion of comments and blocking violated his First Amendment rights. After the U.S. Supreme Court announced its two-part test, it sent the case back to the Sixth Circuit Court of Appeals to assess whether the City Manager’s social media activities violated the First Amendment. In late August, the Sixth Circuit issued its opinion, providing more insight on the analysis set forth by the Supreme Court.
For the first part of the test
announced by the Supreme Court, the Sixth Circuit clarified that the City
Manager must have had actual authority to speak on behalf of the City in his posts. The Sixth
Circuit explained that the City Manager’s Facebook posts would need to be
within his “portfolio of responsibilities” to bring his activity under First
Amendment scrutiny. In other words, it would not be enough for an individual
challenging his activities to show that he had some authority to speak on
behalf of the City—rather, the posts must be clearly related to his role and
responsibilities as City Manager. Additionally, the actual authority to speak
on behalf of the government must come from a distinct statute, ordinance,
regulation, custom, or usage. While it is relatively easy to show that an
ordinance or regulation gives an official authority to speak, the Court acknowledged it can be
difficult to show actual authority by “custom” or “usage,” which rely on
unwritten practices that have become so widespread or common that they carry
the force of law. The Sixth Circuit, echoing the Supreme Court, cautioned that
assessing actual authority requires a close review of an official’s duties, and
will be found where those duties include making statements on behalf of the
government consistent with their office.
If the critic is
able to show that the City Manager had actual authority to speak on behalf of
the City, he then has to establish that the City Manager exercised that
authority in the social media activity being challenged. The Sixth Circuit
clarified that this second step of the test announced by the Supreme Court
requires a post-by-post analysis. The commenter must show that the City Manager
was exercising his official authority in the posts where his comments were
deleted. For the challenge to the City Manager’s choice to block the
critic from his page, however, the assessment is much broader -- any post on the
account that is shown to be an exercise of his actual authority to speak on
behalf of the City could result in liability under the First Amendment if the City Manager censored protected speech. The Sixth
Circuit noted that “context is everything” for the post-by-post analysis under
the second part of the test announced by the Supreme Court and requires a close
review of the challenged posts’ content and function. The Sixth Circuit provided
several examples of social media activity that would most likely lead to a
finding that the First Amendment applies:
- Posts expressly citing an official’s legal
authority to post on behalf of the government;
- Posts that have some legal consequence, such as
the posting of a “burn ban” by a municipal fire marshal; or
- Posts that were made using government staff or
funding.
Because the test announced by the
Supreme Court was not available to the parties when the Lindke case was
brought, the Sixth Circuit sent the case back to the district court to provide
an opportunity to establish facts that shed light on this new test. The Sixth
Circuit noted, however, that the state action analysis set forth by the Supreme
Court does not address several other important issues that are relevant to a
First Amendment challenge (including forum analysis and the application of
qualified immunity), suggesting that there will likely be more litigation
challenging government social media activities in the future.
Post Authored by Erin Monforti & Julie Tappendorf, Ancel
Glink
