The Legal Brief
Supreme Court To Address First Amendment and Social Media Cases
May 2, 2023
The U.S. Supreme Court will review two cases concerning public officials who removed comments and restricted users from accessing their social media accounts. Both cases will be heard during the upcoming term starting in October 2023. These cases offer an opportunity to establish a clear criterion for determining when a public official's social media activity constitutes state action, which could result in liability for First Amendment violations. By choosing a state-action criterion, the Supreme Court aims to reconcile a significant circuit split.
The criterion applied in the Second, Fourth, Eighth, Ninth, and Eleventh Circuits examines if public officials imbue their social media accounts with the authority and prestige of their positions while utilizing them to discuss their official responsibilities. These courts avoid a rigid formula when determining state action in social media use. Instead, they perform a detailed examination of the account's description, usage, accessibility, and how both the official and the public perceive the account.
In Garnier v. O’Connor-Ratcliff, one of the cases under Supreme Court review, the Ninth Circuit evaluated two school board trustees' decisions to remove comments and block users who repeatedly posted lengthy responses on their Facebook or Twitter posts. The Ninth Circuit determined that both trustees' actions constituted state action. They presented themselves as government officials on their social media profiles and displayed their official titles. One trustee even included her official school district email address in her Facebook page's contact section. Both trustees used their social media platforms to actively request feedback on school district matters, announce board meetings, and promote volunteering for various board committees. The Ninth Circuit concluded that these factors sufficiently linked the trustees' social media activities to their official roles, thus considering their actions as state action.
Conversely, the Sixth Circuit dismisses a criterion based on the appearance or characteristics of an official government social media account. In Lindke v. Freed, the second case the Supreme Court will review, the Sixth Circuit adopted a criterion designed for clarity and predictability. According to the Sixth Circuit, social media use constitutes state action only if it is part of a public official's actual or perceived duties or if the official could not use social media in the same manner without their public office's authority.
Under the Sixth Circuit's criterion, a public official's social media activity is less likely to be considered state action, reducing the likelihood of First Amendment liability. Social media use will be deemed state action if required by law, regulation, or official job duty; if public resources are employed in its operation; or if the account belongs to the public office rather than the individual officeholder, like the @POTUS Twitter account, which transitions between presidents. This criterion does not rely on whether an account appears to be an official government account.
In Lindke, a city manager's Facebook page identified him as a "public figure," displayed his title as Port Huron, Michigan's "Chief Administrative Officer," and provided the city's website, an official city email address, and city hall's address as contact information. Although the city manager posted numerous personal items, he also shared information about community events and the administrative directives he issued in his capacity as city manager. Under the criterion used in the other five circuits, these factors would likely constitute state action. However, in the Sixth Circuit, they did not. No law, ordinance, regulation, or formal job duty mandated the city manager maintain a Facebook page, and no city funds or staff were used for its upkeep. The page belonged to the city manager personally, not to his office. As a result, the Sixth Circuit ruled that the Facebook page was personal and therefore did not constitute state action, precluding First Amendment liability.
Public entities and officials should monitor these cases. Those interested in learning more about the First Amendment’s application to their own social media use or that of their colleagues and employees can contact Joshua Claybourn or a member of Jackson Kelly’s government relations practice group.
Joshua A. Claybourn is a Member serving as the Firm’s intellectual property and licensing practice group leader. He also represents municipalities and units of government.