The Supreme Court issued a decision today in Lindke v. Freed, which was taken with O’Connor-Ratcliff v. Garnier regarding if public officials can block people on social media, or if that violates the First Amendment rights of those blocked. The Court in both cases vacated the judgments of lower courts and handed them back down to have new proceedings in line with what they found. Lindke was a unanimous decision written by Justice Barrett.
The determinant is if the public official is acting as "the government" when they are posting (and blocking) online, as the First Amendment binds only the government. The Court found:
When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.
The Court noted, "[w]hile public officials can act on behalf of the State, they are also private citizens with their own constitutional rights" and the First Amendment applies to the officials as well. In order to sort of which is what, the Court sorted through the power invested in the office holder, writing "Freed's conduct is not attributable to the State unless he was 'possessed of state authority' to post city updates and register citizen concerns." They note that simply resharing information available elsewhere is not demonstrating that authority, that "[t]he alleged censorship must be connected to speech on a matter within Freed's balliwick," concluding this idea with "[t]o misuse power...one must possess it in the first place." They also warn against too broad a brush on this:
The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.
In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.
On the second, the Court uses an analogy close to the heart here:
Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board president.
They do note--and in the closing of the decision, warn against--the haziness of the Facebook page in question: is it a public or private page? Posting alone isn't enough, though:
Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities. See, e.g., id., at 235–236. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.
Thus the conclusion:
The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.
But the Supreme Court would also like you to make your personal page clearly that.
Personal, I-am-not-a-lawyer observation: Many deliberative bodies only derive their authority from meeting as a quorum of that body; the individual members have no power, unless specifically designated (like a Chair). As such, this sure seems to point towards their lacking the authority of the first test to act as the state, and thus being unable to violate the First Amendment rights of others. Not, again, a lawyer.
Also worth reading: LawDork, SCOTUSblog
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