Member Article

“Public service is a noble calling” that requires great sacrifice, often requiring public officials to surrender personal conveniences in favor of public business.[1]  An off-duty police officer jumps into action when there is trouble at a family member’s youth baseball game; a city council member answers a late-night call about a loose dog because animal control did not answer the phone after hours; a schoolboard member addresses criticism while shopping for dinner at a grocery store.  For public officials, the opportunities to enjoy private time may seem scarce – and a recent unanimous decision from the Supreme Court of the United States could be viewed as eliminating another: social media.

Social media is a go-to source for information.[2]  In some respects, it is a modern day water cooler – participants “gain access to information and communicate with one another on any subject that might come to mind,” whether that be gossip, speculation or breaking information as it happens.[3]  Unlike a water cooler conversation, social media offers filtering opportunities before the conversation begins.  Social media allows participants to self-select; a user can opt not to “friend” another, can edit and remove comments on “walls” so that others cannot view them, or can outright “block” specific individuals from viewing one’s “page.”  Good or bad, social media allows users to network with only those they self-select, and in turn, allows users to see only the information that they wish to see at any given time.

This could create a constitutional problem, as self-selection and censorship could violate the First Amendment.  For example, if a public official posts announcements about government events on his or her private social media, has that official transformed a personal page into a government one such that the Constitution applies?  Does blocking an adversary access to that announcement become a constitutional violation?  Can a public official post a link to a video of a city council meeting and later remove a friend’s criticism of a council decision during that meeting from a private Facebook “wall” without violating that friend’s right to free speech?

The intersection of the First Amendment and social media has plagued the federal courts, oftentimes with the outcome determined by where the case originated.  For example, in O’Connor-Ratcliff v. Garnier, the Ninth Circuit Court of Appeals ruled that school board members violated the First Amendment when they blocked parents from personal Facebook and Twitter accounts.  Those accounts, though personal in nature, were used to share information about the school board’s activities, and given “the close nexus between the [board members’] use of their social media pages and their official positions, the [board members] were acting under color of state law” and violated the Constitution when they restricted the public’s access to their pages.[4]

The Sixth Circuit saw things differently.  In Lindke v. Freed, a city manager removed comments related to COVID-19 from his personal Facebook page, and blocked those who made them.  The Sixth Circuit found Freed’s actions permissible because, among other reasons, no law required a city manager to maintain a Facebook page, meaning the Facebook page was not part of any public duty or obligation arising out of Freed’s position as a government employee.  In other words, Freed was acting as a private citizen and not a public official, and the First Amendment would not apply.

The line between public and private life is already blurred, but social media makes that blurred line even harder to decipher considering “[public] officials may look like they are always on the clock.”[5]  Where the line is drawn is important because private citizens do not surrender their private First Amendment rights by assuming public office, nor do they surrender the right to “editorial control over speech and speakers” – as long as the official is acting in a personal capacity.[6]  But yet, if a public official crosses that line, he or she could very well be subject to civil liability.  Herein lies the problem: when is a private citizen acting as a private citizen, and when is that private citizen acting in his or her public capacity?

On March 15, 2024, the Supreme Court answered that question (somewhat), at least with respect to social media.  In addressing the Sixth Circuit’s decision in Freed, the Supreme Court held that a private social media page could become public business such that the Constitution applies if the official using the page (1) possessed actual authority to speak on the government’s behalf and (2) purported to exercise that authority when speaking on social media.[7]

First, a public official’s actual authority to speak on government business arises from some affirmative authority to do so.[8]  The first prong is likely satisfied if there is a statute, ordinance, regulation or some past custom or practice recognizing that the official is authorized to speak on behalf of the government on the particular topic at issue.  For example, a city manager who posts about local restaurants and health-code violations, but then deletes “snarky” comments made by other users, may not satisfy this first prong unless “public health” was within the “portfolio of the city manager.”[9]  If not, there was no authorizing rule vesting that official with a public duty to speak, and the official could only have been speaking in a private capacity, and deleting negative commentary was permissible.

Second, if such authority exists, the official must be actually speaking in the public capacity.  This is contextual – it considers the circumstances surrounding that speech, such as where and how a person speaks.  For example, if a mayor speaks at a city council meeting about a matter on the council’s agenda, the mayor is likely speaking in a public official capacity.  If that same mayor later hosts a barbeque among friends in his or her backyard and relays what city council decided on an agenda item, one could reasonably conclude the mayor was speaking in a private capacity as nothing suggested that he or she assumed a mayoral role when speaking.[10]  Similarly, a Facebook page that made clear the page was a “personal page” used solely in a private capacity would be entitled to a “heavy . . . presumption” that all posts were personal, largely because the official made it clear that anything said on that page was said in a private capacity.  “If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice” and not on behalf of the government.[11]

The Supreme Court provided some clarity to these issues, but as the description above explains, the tests are still rather ambiguous and will require lowers courts to provide clarity.  Until then, government officials would be wise to consider whether they use their personal social media pages to share any public business, and if so, whether their social media activities could be traced to any public duty.  Because this is an evolving area of law that has the potential to create liability, public officials are encouraged to consult with their Dinsmore attorney to craft appropriate social media guidelines and to examine the extent limitations placed on their social media pages could bring about liability.

---

[1] George H.W. Bush, The Bush School of Government & Public Service, available here. (last accessed Mar. 18, 2024).

[2] See, e.g., Packingham v. North Carolina, 582 U.S. 98, 99 (2017) (observing social media has become one of the “principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge”).

[3] Id.

[4] Garnier v. O’Connor-Ratcliff, 41 F. 4th 1158, 1170 (9th Cir. 2022).

[5] Lindke v. Freed, ____ U.S. ___ (2024).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See id.

[11] Id.

 

Link to article