It is fairly well-established that public entities, like school districts, cannot delete comments or block commentors on official government social media pages, as such deletions and blocking would be content-based First Amendment violations. It is also well established that private citizens can delete comments or block commentors on their personal social media pages, because the First Amendment does not restrict individuals. Manhattan Community Access Corp. v. Hallecek, 587 U.S. 802 (2019). What about the social media pages of public officials, like school board members and Superintendents of Schools? The U.S. Supreme Court decided two cases on March 15, 2024, that answered – to some extent – that thorny question; and the answer, like many in school law, is: “it depends.”
A little context: In Lindke v. Freed, the first case the Supreme Court considered, city manager James Freed continued to update a Facebook page he created in college. He described himself on the page as “Daddy to Lucy, Husband to Jessie, City Manager, and Chief Administrator for the citizens of Port Huron, MI.” He continued to post about his personal and professional life. He also posted information related to his job, highlighting important information, seeking citizen feedback on City issues, and responding to citizen comments. He deleted comments he considered “derogatory” or “stupid.” After the COVID-19 pandemic began (will we ever stop talking about it?), Freed posted personal and professional posts about COVID-19, including photos of his family spending time at home and outdoors, COVID-19 case counts, hospitalization numbers, the City’s hiring freeze, and a screenshot of a press release about a relief package he helped prepare. Kevin Lindke commented on some of Freed’s posts, complaining about the City’s actions to protect its citizens and some of Freed’s actions, like getting take-out food at a local restaurant. Freed deleted Lindke’s comments, and ultimately blocked Lindke, preventing him from commenting. Lindke sued Freed, alleging unlawful violations of his free speech rights. The district court sided with Freed, ruling that his Facebook page was personal, enabling him to block Lindke; the Sixth Circuit agreed.
Conversely, in O’Connor-Ratcliff v. Garnier, the second case the Supreme Court considered, Michelle O’Conner-Ratcliff and T.J. Zane created public Facebook pages for their school board election campaigns. While they had personal Facebook pages, they used the new pages for campaigning. After their successful elections, they used their new pages to post issues related to the Poway United School District Board on which they then served. They recapped board meetings, sought applicants for board positions, shared budget plans and surveys, shared public safety updates, and sought citizen input. The Garniers, who had children in the public school district, posted comments criticizing the board of trustees. Their comments were often lengthy and repetitive. As an example, they posted nearly identical comments in 42 separate posts on O’Connor-Ratcliff’s Facebook page. They also posted 226 identical replies within a ten-minute time span, responding to every Tweet on O’Connor-Ratcliff’s Twitter feed. Initially, the trustees first deleted and hid the Garniers’ comments, and then ultimately blocked them from commenting. The Garniers, too, sued, alleging violations of their First Amendment free speech rights. The district court granted O’Connor-Ratcliff and Zane’s qualified immunity on the damage claims, but allowed the case to proceed on the merits on the conclusion they acted “under color of state law” when they blocked the Garniers. The Ninth Circuit agreed that there was a close link between the board members’ use of their social media pages and their official positions.
Due to the conflict among the circuit courts, and because the tests that each circuit devised to reach their decisions were different, the Supreme Cout agreed to hear the pair of cases. In considering the cases, the Supreme Court acknowledged that state action is “easy to spot” in most cases when public officials act in their official capacity. “Sometimes, however, the line between the private conduct and state action is difficult to draw,” the Court stated. The Court also acknowledged that public officials do not give up their rights to speak as citizens on matters of public concern, citing Garcetti v. Ceballos, 547 U.S. 410 (2006). This includes the right to speak about information related to or learned through public employment, as long as that speech is not ordinarily within the scope of the employee’s duties. Lane v. Franks, 573 U.S. 228 (2014).
In this new pair of social media cases, the Supreme Court held that a public official’s social media activity constitutes state action only if the official: (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he or she spoke on social media. Both questions are important – the Court noted that “the appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.”
To determine “actual authority” under the new test, the Court cited written laws, customs, and usage. To explain the “purporting to exercise that authority” portion of the test, the Court created a hypothetical: a school board president announcing, at a school board meeting, that pandemic-era restrictions are lifted, versus the same school board president telling friends at a backyard barbecue that the board lifted the pandemic-related restrictions. While the substance of the announcement is the same, the Court said, the context differs, and the board president only invoked his authority at the board meeting.
In acknowledging that the context of Freed’s Facebook posts were hazier than the hypothetical, the Court noted that, if the Facebook page stated that the page is a personal page or the views expressed were his own, then there would be a heavy, although not irrebuttable, presumption that he was speaking as a private citizen. On the other hand, a social media page that states that the account belongs to the governmental entity, or otherwise notes that it is an official page, makes it clear the page is designed to speak for the government.
In looking at a mixed-use page such as Freed’s, the Court said, “the post’s content and function are the most important considerations.” The Court gave the example of a mayor who posts, “by authority under a city ordinance, he is suspending certain parking rules,” noting that he would be posting under state authority, especially if the social media post is the only place the announcement is made, and if it took effect immediately on publication. The Court contrasted that with the same mayor posting on his personal social media page a repeat of a prior proclamation or a link to the City’s webpage announcing the change, stating that is more likely private speech related to his public employment or concerning information he learned during his employment. The Court did note, however, that “an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.”
Finally, and importantly, the Court also warned that the nature of the technology makes a difference, noting that Freed deleted Lindke’s comments and blocked him from commenting again. The Court then stated that the relevant posts were those on which Lindke’s comments were deleted. “Blocking, however, is a different story,” said the Court. Because blocking operates on a page-wide basis, a court would have to consider whether Freed engaged in State action on any post on which Lindke wished to comment. Noting the inherent risks in a mixed-use social media account, if a total page-block is instituted, then a public official could be unable to prevent someone from commenting on personal posts without risking liability by preventing comment on official posts. “A public official who fails to keep personal posts on a clearly-designated personal account therefore exposes himself to greater potential liability.” In other words, a public official who uses his or her social media account for both official and personal purposes could be liable for blocking someone because it would prevent that person from commenting on official posts.
The Supreme Court sent both cases back to their respective circuits to follow the Supreme Court’s new test: (1) whether the public official had actual authority to speak on behalf of the State on a particular matter; and (2) whether the public official exercised that authority when making the social media posts.
This is just an overview of the Supreme Court cases and is not intended to be legal advice. Please contact the school law attorneys at Brackett & Ellis if you need help navigating a social media matter. We can be reached at (817) 338-1700.
