By Bryan E. Pacheco, Partner.
In Lindke v. Freed, Plaintiff sued the city manager of Port Huron, Michigan, alleging that he violated Plaintiff’s First Amendment rights by deleting Plaintiff’s comments and blocking Plaintiff from commenting or posting on the manager’s “personal” Facebook page. The city manager’s posts chronicled both family and professional events, mixing family photos with posts about the city’s COVID-19 policies and other public health information. The page preexisted his role as a public officer (though the contact information on the page was the city’s).
The Sixth Circuit held that no First Amendment violation occurred. In so holding, the court noted that the city manager was acting in his personal capacity when operating his Facebook page. Specifically, the court found that he did not operate the page to fulfill any actual or apparent duty of his public office and did not use his governmental authority or government resources to maintain the page. Accordingly, the court held there was no state action and thus no First Amendment violation.
According to the Sixth Circuit, state action exists if the public official was using the social media platform in his official capacity. To make this determination, the court viewed the official’s Facebook page and asked (1) was the social media activity part of the officeholder’s actual or apparent duties; or (2) was the authority of the public office required for the social media activity to have occurred as it did?
The court used examples to illustrate each point, noting that the most straightforward instance of an actual duty was when a state statute mandated that an officeholder maintain a social media account in his or her official capacity. Another factor as if the state funded or otherwise provided the resources required to run the social media account. Other cited example of state actions - if the account belonged to the office itself rather than the individual officeholder or where the officeholder used the inherent authority of the office to direct state employees to manage a social media account.
By contrast, the Facebook page at issue was created years before the city manager became a public official. Plus, there was no evidence that the page belonged to the city or that the manager intended to turn the page over to future city managers. The city manager did not have an actual (statutory) or apparent duty to post on his Facebook page and used no state funds or other resources to maintain it. Absent any of these circumstances, the court found insufficient evidence that the city manager operated his page in his official capacity.
Notably, Plaintiff had argued that the city manager’s use of his official title and the city address, email, and website on the Facebook page were sufficient to give the impression that the page was operated under the state’s imprimatur. The Sixth Circuit rejected the argument that these trappings of public office, like a police officer’s uniform, evoked state authority. The distinction for the court—unlike uniformed police officers whose appearance establishes their actual authority to act—the city manager’s social media posts did not carry the force of law simply because the page said it belonged to someone who is a public official.
The court concluded, emphasizing that its approach focusing on the actor’s official duties and the use of government resources was rooted in precedent on state action and provided state officials and district courts with clarity and predictability in the otherwise amorphous real-world context. Consequently, there was no First Amendment violation on these facts.
The Ninth Circuit (think California and West Coast) adopted a different approach recently. In Garnier v. O’Connor-Ratcliff, the Ninth Circuit held that social media accounts used to carry out the official duties of two public school board officials were public fora. Under the First Amendment public forum criteria, the officials’ decisions to restrict the expression of certain individuals were not appropriately tailored to serve significant government interests and thus violated the blocked individuals’ First Amendment rights.
The social media accounts at issue were originally used as promotional tools during each candidate’s campaign for School Board office. Once the candidates were elected, however, they began using the social media pages to inform constituents about events at the School District and on the district Board of Trustees, to invite the public to Board meetings, to solicit input about important Board decisions, and to communicate with parents about safety and security issues at the District's schools.
In response to Plaintiffs repeatedly posting identical or substantially similar criticisms on the officials’ social media pages, each official first deleted or hid the individual comments. But they eventually blocked Plaintiffs from their respective accounts, giving rise to Plaintiff’s claim that their First Amendment rights were violated by the blocking.
The court, following Ninth Circuit precedent, found that a state employee, even when arguably off duty, acts under the color of state law when “(1) the employee purport[s] to or pretend[s] to act under color of law; (2) his pretense of acting in the performance of his duties . . . had the purpose and effect of influencing the behavior of others; and (3) the harm inflicted on plaintiff related in some meaningful way either to the officer's governmental status or to the performance of his duties."
In establishing that the above criteria were met, the court explained that the Trustees were state actors because they used their social media accounts to conduct official business in a way that a private citizen, lacking the power and prestige of the Trustees’ office, could not have done. Additionally, they administered their pages to perform actual and apparent duties of their offices. Consequently, the Trustees created designated public fora by making their social media pages available for use by the public and failing to establish a policy or practice to regulate content posted by other users.
The Trustees argued that their use of a Facebook word filter, applied to effectively prevent all users from posting comments, effectively closed their Facebook pages as public fora. The court disagreed, noting that users could still post non-verbal reaction icons. As a result, the court characterized Facebook pages utilizing the word filter as limited, rather than designated, public fora. The Ninth Circuit found that blocking the Plaintiffs from posting on the Facebook accounts violated the First Amendment regardless of the type of forum.
Specifically, the Trustees’ decision to block Plaintiffs from the designated fora did not advance a substantial government interest. Plaintiffs’ posts did not disrupt the Trustees’ pages or interfere with the Trustees’ ability to host discussions there. The court noted that Facebook and Twitter both automatically restricted the amount of text visible to viewers (requiring viewers to select “See more” in order to read the full post). In any event, viewers could simply scroll past the repetitive content.
The court also found that blocking the Plaintiffs was not sufficiently narrowly tailored and burdened substantially more speech than necessary. Put simply, blocking prevented them from using the non-verbal icons on Facebook and from even viewing the content on Twitter. The court pointed out that a more narrowly tailored solution was available—it was not burdensome for the Trustees to control the content on their pages by hiding or deleting potentially repetitive posts individually rather than blocking the Plaintiffs altogether.
Finally, blocking Plaintiffs from posting non-verbal reactions on the Facebook pages that were protected by the word filter (the limited public fora) failed to advance any government interest. The court found nothing indicating that Plaintiffs’ use of non-verbal reactions would disrupt or detract from the Trustees’ pages or their specific posts. Accordingly, the court found that blocking the Plaintiffs was not reasonable in light of the purpose served by the forum.
These two cases highlight the importance of understanding the federal judicial circuit in which you operate and the need to contact your local counsel with questions.
Credit to DINSMORE