On March 15, 2024, the U.S. Supreme Court issued a unanimous ruling in Lindke v Freed, providing guidelines on how public officials can regulate and manage their personal social media accounts. In this case, a Michigan city manager used their personal Facebook page, which was publicly accessible, to post job-related information along with personal posts. He often responded to comments on the posts, including resident inquires and sometimes deleted comments that he considered derogatory or stupid. After the COVID-19 pandemic began, he posted information about the city’s response. A resident commented expressing their dissatisfaction with the city’s approach to the pandemic, which the city manager initially deleted before ultimately blocking the poster from commenting. The blocked resident sued, claiming First Amendment violations.
After review of the case, the Supreme Court held that "a public official who prevents someone from commenting on the official’s social-media page engages in state action under §1983 only if the official both (1) possessed actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.”
The court stated 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, stating the public official must have “actual authority rooted in written law or longstanding custom to speak for the State.”
In addressing the second part of the analysis, whether the official was speaking on the State’s behalf, the court pointed out as an example that if the public official’s personal account carried a label or disclaimer, the official “would be entitled to a heavy (though not irrefutable) presumption that all of the posts on his page were personal.” Conversely, an account belonging to a political subdivision (@SchoolDistrict) or one that is passed down to subsequent office holders (like @DistrictSup or @HSPrincipal) could be considered as speaking for the government.
Regarding mixed-use social media, where a governmental official posts official information on their personal page, the court stated the analysis would be fact intensive, and the scope of review may depend on the alleged state action. For example, a single deleted comment requires a narrower analysis compared to the blanket user ban.
Public officials, such as school board members, superintendents, and school administrators, may receive some leeway when acting as private citizens on their social media. But when a public official has the authority to speak on the district’s behalf and purports to exercise that authority, the First Amendment will restrict their ability to regulate commenters and posters.
If you have questions on this issue or other legal matters, please contact MASB legal staff.