Local Government Law Bulletin March 28, 2024 Kathryn Z. Stegink

Liability Standards for a Public Official’s Social Media Activity

On March 15, 2024, the U.S. Supreme Court issued its opinion in Lindke v. Freed, which involves the important issue of whether a municipal official’s social media activity may be considered “state action,” and thereby possibly give rise to viable First Amendment claims against the official and the official’s governmental employer.

The Lindke v. Freed case involved a situation where James Freed, the City Manager of Port Huron, Michigan, maintained a personal Facebook page where he posted about his family and job. A member of the public, Kevin Lindke, who was unhappy with the City’s pandemic response, commented critically on some of Freed’s posts. Freed deleted Lindke’s comments and eventually blocked him from commenting further. As a result, Lindke sued Freed in federal court under 42 U.S.C. § 1983, alleging that Freed violated his First Amendment rights

When deciding this case, the Supreme Court developed a two-part test for determining whether liability could arise from a public official’s social media activity. It held that a public official’s social media activity constitutes state action under § 1983 only if the official (1) possessed actual authority to speak on the state’s behalf, and (2) purported to exercise that authority when speaking on social media. The Court clarified that the appearance and function of the social media activity are relevant at the second step, but cannot make up for a lack of state authority at the first.

In developing this test, the Court reasoned that the state action doctrine requires a public official’s conduct to be fairly attributable to the official’s governmental employer. This requires the official to have actual authority from his or her governmental employer to speak on its behalf regarding the matter at issue. Merely having a job description that could encompass such authority is insufficient. The official must also purport to exercise that authority in the specific social media posts at issue, as evidenced by factors such as expressly invoking governmental authority or using government resources. The Court ultimately remanded the case back to the District Court, so that the District Court could apply these standards to the City Manager’s disputed Facebook activity.

Municipal officials should clearly understand these standards, before using social media to comment on municipal affairs. Please contact your municipal attorney at Mika Meyers if you have questions about this topic.

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