Supreme Court unanimously upholds First Amendment rights of public officials on social media

  In Lindke v. Freed, the United States Supreme Court has issued a long overdue, but welcome opinion affirming that public officials do not lose their own First Amendment rights on social media simply because they have been elected to public office. The Court should be commended for doing so unanimously, and while the opinion authored by Justice Barrett includes a few fuzzy caveats (assumedly to widen the buy-in from colleagues), the resulting standard is still remarkably clear  given the years’ worth of debate on the topic. The result is a win for elected officials who wish to use social media like regular human beings without incurring some corresponding obligation to host vile obscenities, threats, and, in some cases, outright campaign propaganda from their political opponents, on their own accounts. This article will detail the various caveats and tests, but at base, the Court has concluded that – yes, elected officials can delete comments and block trolls on social media. 

  As the Court observed in Freed, this case has been a long time coming. The Second and Ninth Circuit U.S. Courts of Appeal had previously issued vastly different rulings which, generally summarized, concluded that elected officials could not block users or delete comments from users, even on social media platforms maintained by the elected officials themselves, which did not use any government resources. Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (CA9 2022), Knight First Amendment Inst. At Columbia Univ. v. Trump, 928 F.3d 226 (CA2 2019). Those cases received an inordinate amount of media attention given that they only ever applied in 4 states out of 50, and the U.S. Supreme Court vacated the Trump decision as moot when he left office. And so, the issue remained unresolved. The practical result of the uncertainty was, in many cases, over-cautious legal opinions from government lawyers advising elected officials in their orbit that they could never block anyone or delete comments on social media, even on their personal or campaign accounts that were unaffiliated with the government entity itself. “Elected officials can’t block constituents on social media!” thus became a refrain that was parroted by trolls for years, despite the fact that, in the majority of states, no court had actually said any such thing.

  The impracticability of this guidance has been readily apparent, and I can use my own social media activity as an example. I served as a County Commissioner in Pickaway County, Ohio from 2012 through 2020, when I was then elected to the Ohio House of Representatives, where I am presently serving my second term. Throughout that time, I maintained a personal Facebook page, a Facebook campaign page maintained by my campaign committee titled “Brian Stewart, Pickaway County Commissioner” (later changed to “Brian Stewart, State Representative”), and a Twitter account, @BrianStewartOH. None of these accounts has ever been administered by any government employee or paid for with any public funds. The only person posting to them is me. My personal Facebook page can only be viewed by “friends,” and is mostly made up of family updates, movie reviews, vacation pictures, and the other usual musings of a 40-year-old dad. Occasionally, my personal page might have an update about my campaigns for public office (“I’m running for…”) or an update about an especially notable event in my public job (“Today I introduced House Bill XXX…”). My Facebook campaign page includes updates about my work in public office, as well as updates on my campaigns for those public offices. My Twitter account features a mix of everything.

  The most risk-averse guidance previously suggested that if any of my friends decided to hijack my personal Facebook page to post campaign updates for my opponent, or insult my family, or use profanity against my friends in the comments section, that I somehow had a constitutional obligation to leave those comments in place. Likewise, my campaign page mostly features updates about my political campaigns and my activities in public office. The prior guidance suggested that I was somehow required to let my opponents campaign against me in the comments section, and that, by virtue of being elected, I alone (though not my opponents), had a duty to host these replies on my own page. By way of analogy, it was urged that I as McDonald’s had some constitutional obligation to let my opponent, Burger King, advertise in my lobby. Virtually no one would credibly argue that the Donald Trump campaign has a constitutional duty to let Democratic activists sit in its physical campaign headquarters and shout obscenities all day. And yet, in the online space, this is essentially what the Second and Ninth Circuits had decreed.

  Enter the Sixth Circuit U.S. Court of Appeals and Lindke v. Freed. Freed was a local elected official who maintained what the Supreme Court has now referred to as a “mixed use” page on Facebook. Freed maintained the account himself – no government personnel or funds were used to administer it. Freed posted about family matters and his day-to-day life, and then used the page to simultaneously post about his work as City Manager. When Lindke entered the comments section to criticize Freed, the latter deleted some of the comments, and eventually, blocked Lindke from viewing the page. Lindke sued, making the same arguments advanced by the Second and Ninth Circuits. At base, “Lindke sued Freed under 42 U.S.C. §1983, alleging that Freed had violated his First Amendment rights.” Freed, at 4. “As Lindke saw it, he had the right to comment on Freed’s Facebook page, which he characterized as a public forum. Freed, Lindke claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them.” Id. Citing the split between circuits, the Supreme Court issued a writ of certiorari and heard the case.

  The topline holding in Freed is that, with respect to social media postings by elected officials, “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.” Freed, at 1. Importantly, if the speech is not attributable to the State under this test, then any claim for violation of the First Amendment fails from the outset. The Supreme Court welcomely acknowledges, early in the decision, that “Freed did not relinquish his First Amendment rights when he became city manager.” Freed, at 7. “On the contrary, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern,” and where that right exists, “editorial control over speech and speakers on the [public employee’s] properties or platforms is part and parcel of it.” Id.

  So, looking to the first prong, it must initially be determined what constitutes an elected official “possessing actual authority to speak on the State’s behalf.” Right away, the Court rejected Lindke’s argument that “Freed’s social media activity constitutes state action because Freed’s Facebook page looks and functions like an outlet for city updates and citizen concerns.” Freed, at 10. Not so. Rather, the actual authority to speak on the State’s behalf must be found either in a specific statute or ordinance, or “custom” and “usage.” Freed, at 11. “In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State” and “that authority must extend to speech of the sort that caused the alleged rights deprivation.” Id. “If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.” Id. at 12. Stated another way, an elected official’s social media page is not state action simply because it looks “official.”

  At an initial glance, this first prong appears somewhat amorphous, but in practice, it sets a very high bar for future plaintiffs to meet. This is because very few government entities have actual municipal or state ordinances which authorize anyone to have “actual authority to speak for the State”, let alone its elected officials. In other words, even if such ordinances and statutes do exist, they more typically pertain to the actual employees of the government, rather than the public officials elected to lead the government. By way of example, a member of City Council, by the nature of the position, does not “speak for the City,” as he/she is just one member of its legislative authority, and therefore cannot speak for the City as a whole. Likewise, even the Mayor can rarely “speak for the City” since he/she is merely the leader of the executive branch of the government, with policy making shared jointly with council as the legislative branch. In Ohio, individual countywide officeholders likewise are not empowered by the Ohio Revised Code to “speak for the County” on social media; even a single County Commissioner is just one of three members of the executive authority for the county. A state legislator also cannot, by the nature of his/her position, “speak for the State,” since they are merely one member of a multi-member body of that state legislature. On the other hand, the Freed Court does highlight the grayer area of a city health inspector who is making posts about city health inspections, but again, this speaks to the narrow instances of a singular official, with specific duties set out in an ordinance, including the specific authorization to make pronouncements regarding those specific duties. However, in practice, for the reasons cited above, such an analysis would be very difficult to apply to an elected official, serving in co-equal branches of a municipal, county, or state government.

  This brings us to the second prong of the Freed test, which sets the bar for plaintiffs even higher. “For social media activity to constitute state action, an official must not only have state authority – he must also purport to use it.” Freed, at 12. Crucially, the Court noted that “had Freed’s account carried a label (e.g. “this is the personal page of James R. Freed”) or a disclaimer (e.g. “the views expressed here are strictly my own”) he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Freed, at 13. In describing when an elected official’s social media might “speak for the government,” the Court described “an account [that] belongs to the government” like a city’s Facebook page or an account passed down to whomever occupies a particular office (i.e. the @POTUS Twitter account). Again, however, these examples are vastly dissimilar to a Facebook account maintained by an individual officeholder without using state resources (such as, “Brian Stewart, State Representative” on Facebook). In a footnote, the Court includes another telling bit of guidance, when it observes that “a post [by an elected official] that is compatible with either a ‘personal capacity’ or ‘official capacity’ designation is ‘personal’ if it appears on a personal page.” Freed, at FN2.

  A frequent argument from those wishing to make elected officials’ personally maintained social media accounts subject to First Amendment limitations has been that if the elected official posts information relating to their official office, that this itself converts the page into state action. For example, photos of the elected official working in their job, a clip of a council meeting or legislative floor speech, or other graphics relating to their official business, are frequently shared by elected officials on accounts maintain by themselves or their campaign. The Freed opinion unanimously rejected this argument as well. The Court noted that if a mayor made an official announcement exclusively on his personal Facebook page, such as “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules” then this “express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty.” Freed, at 14. However, if the elected official “merely repeats or shares otherwise available information” such as sharing a link to information on the city’s website, “it is much more likely that he is engaging in private speech related to his public employment” which does not constitute state action. Id. And, again, if the post does not constitute state action, the elected official does not violate the First Amendment by blocking a user’s access to view it or deleting their comments underneath it. Applying this reasoning to the examples above, a state legislator linking to footage of his floor speech, or sharing a press release, would not constitute state action, especially if the speech and/or press release is also viewable on the legislature’s website or obtainable elsewhere.

  Justice Barrett’s opinion weighs heavily in favor of the First Amendment rights of elected officials when it adds the further caveat that “an official does not necessarily purport to exercise his authority simply by posting about a matter within it.” Stated another way, the mere fact that an elected official makes a post about their activities as an elected official does not make that post “state action” subject to First Amendment scrutiny. Rather, “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.” Freed, at 14. Elected officials “have the right to speak about public affairs in their personal capacities” without such posts constituting state action and creating a corresponding limitation on the official’s right to restrict access to viewing or commenting upon such posts. Id. Illustrating the Court’s view on the boundaries of this test, the Court observed that “an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.” Id. The inverse is that an elected official who does not use government staff to make their posts has a far stronger argument that their post was not conducting government business.

  The Freed Court’s closing discussion about “blocking” a user vs. “deleting” their comments initially reads as somewhat complicating the analysis, since it posits that “if page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.” Freed, at 18. The broadness of this observation is severely limited, however, by the very next line of the opinion, which clarifies that, “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” Id. It is possible that practitioners’ interpretations of Freed may attempt to cast “personal posts” as those which have no reference to public business, but the Court has already made clear that this is not so. Rather, a “personal post” under Freed includes any post – including those pertaining to an elected official’s public office – in which the elected official lacks actual authority to speak for the State or is not purporting to speak for the State. Freed, at 14. Accordingly, the inverse of the Court’s observation here is that an elected official who does make personal posts on an account that is designated as personal, significantly limits their liability.

  Applying Freed to the social media activity of elected officials (as opposed to government employees), the parameters become fairly straightforward. First, it must be determined if the elected official’s social media post is made pursuant to an authorization “by written statute…usage…custom” for them to “speak for the State” as a whole. As noted above, this would rarely be the case for any elected official and would almost never be the case for a state legislator. If the answer to this question is “no,” then the analysis ends, and the social media activity of the elected official is not state action, and the elected official has no First Amendment obligations to those viewing or wishing to comment. Second, even if the answer is “yes,” and the elected official is authorized to speak for the State, then the post by the elected official must also “purport to be an exercise of that authority.” However, the Court suggests that an elected official can fairly easily disavow such a suggestion by the use of a disclaimer on the page, such as “Personal Page of [Elected Official]” or “The views expressed here are my own, and not those of the State of Ohio.” Third, an elected official can freely post about his public duties without “purporting to exercise” authority to speak for the state, since the elected official retains “the right to speak about public affairs in their personal capacity,” including for the purpose of “promoting [their] prospects for reelection.” On that basis also, the elected official’s social media post would not constitute state action.

  Overall, from its opening paragraph, the Freed opinion strongly suggests that the Court is attempting to provide lower courts with a roadmap for extricating the judiciary from the obligation to police pleas of First Amendment persecution from trolls on social media. The Court casts Freed’s activity as typical (“like millions of Americans” he “maintained a Facebook account on which he posted about wide range of topics”), and it also casts his response to his trolls as typical (“in response, Freed took a step familiar to Facebook users” in deleting comments and blocking those who made them.”) It paints Lindke as a bit of a thin-skinned hall-monitor (“Enter Kevin Lindke.”), noting that “for most people with a Facebook account, that would have been the end it…but Kevin Lindke, one of the unwelcome commenters, sued Freed […].” The Court’s recounting of the factual background includes the unflattering detail that Lindke, in response to a picture posted by Freed of his picking up takeout food, whined that Freed was “eating at an expensive restaurant instead of talking to the community.”

  The Freed test is notable for flipping the previous circuits’ analysis on its head. The default, under Freed, is that an elected official can block users and delete comments on social media unless the high bar of its two-pronged test is met. Yet the Court then provides multiple examples of caveats to both prongs, and specific examples of social media activity by elected officials that would not constitute state action. At each turn, the Court is providing elected officials with a roadmap for how to avoid liability, and telling lower courts that plaintiffs have a steep mountain to climb in future lawsuits over blocking and comment deletion.

  The Court’s approach is sound on both practical and principled grounds. Practically speaking, more than 4.9 billion people worldwide use social media, and nearly 70% of U.S. adults report using Facebook, as just one example. The Freed decision observes that there are “20 million state and local government employees across the Nation […].” Freed, at 8. Accordingly, it would be a practical absurdity to hold that each time one of those 20 million state and local government employees blocks a troll, or deletes a nasty comment, on a page maintained by the employee, and not by the State, that this creates a justiciable controversy on behalf of the allegedly aggrieved poster. There is virtually no way for government entities themselves to police or control the private social media activity of its employees and elected officials on non-governmental accounts. Consequently, this would mean that the government, and its taxpayers, could have an unquantifiable, never-ending source of legal liability for which the entity is eternally responsible, despite having no means of enforcing a policy to restrain that liability. For example, as a state legislator in Ohio, I answer only to the voters, and am not bound by the same employee handbook policies as a state government employee. The State of Ohio cannot dictate how I maintain my campaign Facebook page, including whether I choose to block a user, or not. Yet, if I am sued in my capacity as a state legislator, by a plaintiff claiming that my social media activity constitutes state action, it can be argued that the State of Ohio may nonetheless have an interest in defending the case. Freed recognizes this practical dilemma by significantly narrowing the path for plaintiffs to prove liability.

  Freed makes good principled sense as well, however. As noted above, if virtually all reasonable minds would agree that a protestor cannot intrude on a political candidate’s private campaign headquarters and scream obscenities all day, it makes little sense for courts to suggest that a protestor has a constitutional right to intrude onto a candidate’s social media platform and scream obscenities all day. No one would suggest that a press release sent by Candidate A must also have appended to it an advertisement for Candidate B’s campaign, so it would make little sense for courts to require Candidate A’s campaign-related social media posts to likewise host all the underlying comments by Candidate B’s supporters trumpeting Candidate B. No one would seriously argue that Candidate A, alongside a sign at their HQ which reads, “We stand with Israel” after October 7, must also host a banner which expresses support for Hamas. And so, it would make little for courts to mandate that Candidate A, posting “I stand with Israel” on Twitter, must also provide a forum for @eatawh0lebag to post “Israel…Fuck them trash as folks. And fuck you too.” (This is a real reply to my own posts in support of Israel). The First Amendment histrionics from the blocked trolls were always an overblown exercise in pearl-clutching to begin with. Blocking a user from commenting on an elected official’s Facebook page does not prevent the user from commenting on their own. Residents have a First Amendment right to criticize city government in most public spaces, but they do not have a First Amendment right to barge into the Mayor’s office itself to scream at him whenever they choose. The First Amendment protects an individual’s right to speak themselves but does not guarantee a right to be heard by a particular government official. Moreover, in the real world, nothing obligates a public official to speak to every constituent upon the constituent’s demand. Likewise, it then makes little sense to suggest that an elected official who chooses to speak only to certain people online (the practical effect of blocking a troll) somehow has a corresponding constitutional obligation to speak to every constituent at the same time.

  Freed acknowledges the commonsense reality that elected officials are inevitably going to behave online much like they do in the real world. They will interact with some people while declining to interact with others. They will have certain conversations intended for certain people but choose not to share those conversations with others. They may, eventually, take steps to ignore certain people who wish only to lob insults, jeers, profanity, threats, and vile comments about their families. All of this is perfectly legal in the real world, and so Freed wisely sets a high bar for making it a violation of the law in the online world. The wisdom of blocking users and deleting comments is certainly up for continued debate and differing opinions. Elected officials should, and usually do have a thicker skin than the average person. An elected official who blocks too often, or cannot handle any criticism online, will inevitably be the subject of criticism among their constituents. But Freed wisely stands for the idea that such disputes should be resolved at the ballot box, not through endless litigation in our courthouses.

-Brian Stewart is an attorney in private practice and serves as State Representative for Ohio's 12th House District

Welcome to The Law Office of Brian Stewart, LLC

Brian Stewart Headshotjpg

Thank-you for visiting our website for The Law Office of Brian Stewart, LLC. As I prepare to enter my 12th year of practice, I am grateful for the opportunity to continue serving amazing clients across communities that I love.

In my practice I have helped business clients who generate millions of dollars of revenues, and small businesses starting out and generating hundreds of dollars. I have fought for clients in million dollar trials, and I have fought for clients in small claims court. Simply put, I love practicing law because it allows me to help good people solve problems, whether it be complex litigation, or preparing a Last Will and Testament.

I have been blessed to work with great attorneys my entire career and to gain experience across a wide variety of matters. It's my privilege to put those skills to work fighting aggressively for the clients I am fortunate enough to serve. Thank-you for your interest in our firm. We would be grateful for the opportunity to assist you.