High Court Decides First Amendment Case Involving Public Official’s Facebook Page

In a case involving work-related posts on a public official’s Facebook website, the U.S. Supreme Court ruled in Lindke v. Freed on March 15 that a city manager’s speech might be attributable to the government such that First Amendment rights may be invoked under limited circumstances. Those circumstances are if the official had actual authority to speak on the government’s behalf and purported to exercise that authority when they spoke on social media. Public officials, who number in the millions, are at greater risk for blocking commenters on their social media accounts than deleting their comments, the court stated.

James Freed, city manager of Port Huron, Mich., was sued for allegedly violating a commenter’s right to free speech when he deleted a comment and blocked a commenter on his Facebook page. Because the First Amendment applies only to the government, the claim would be a nonstarter if Freed posted as a private citizen, the court noted. Freed insisted his Facebook account was strictly personal; the commenter argued otherwise.

Freed, whose profile was set to a public page, chose “public figure” for his page’s category and described himself as a father, husband and city manager. He posted prolifically and primarily about his personal life. Sometimes he posted about his job. After the COVID-19 pandemic began, he posted about that. Unhappy with the city’s approach to the pandemic, the commenter said the city’s approach was “abysmal” and “the city deserves better,” among other comments. Freed initially deleted the comments, then blocked the commenter.

Freed, the commenter claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. Lower courts ruled for Freed.

The Supreme Court said sometimes “the line between private conduct and state action is difficult to draw.” It ruled that the commenter “cannot hang his hat on Freed’s status as a state employee.”

The high court said there are approximately 20 million state and local government employees across the nation—from governors, mayors and police chiefs to teachers, health care professionals and transportation workers. Many use social media, the court observed.

The commenter must show that Freed had some authority to communicate with residents on behalf of Port Huron, the court wrote.

“Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within in it,” the court stated.

Blocking is a different story from deleting comments, the court added. “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability,” it said.

The court vacated the prior judgment—meaning to throw it out—and sent the case back to the lower courts to apply the new test set out by the court to the facts of the case. We’ve gathered articles on the decision from SHRM Online and media outlets.

Acting in Private Capacity OK’d

Writing for a unanimous court, Justice Amy Coney Barrett stated that if Freed acted in his private capacity when he blocked the commenter and deleted his comments, Freed did not violate the commenter’s First Amendment rights—instead, he exercised his own.

(CNN)

Separate Decision Issued

In a separate decision, the court considered whether Southern California school board members could bar parents from commenting on their personal Facebook and Twitter accounts. The Biden administration had weighed in, arguing that the accounts were personal. Lawyers for the blocked constituents said the officials were performing public functions on their accounts. The separate decision also was sent back for lower courts to decide based on the new test.

(USA Today)

Social Media Risks

Employee use of social media sites, whether for personal use or as an official part of the employer’s social media strategy, can open the door to certain liabilities, including exposing networks to attack, distributing confidential information and harassment.

(SHRM members-only tookit)