In Linke v. Freed, published March 15, 2024, the United States Supreme Court unanimously reversed a circuit court decision dismissing a 42 U.S.C. section 1983 claim, and remanded the case for further proceedings. The defendant created a Facebook page when in College. He later became a city manager. He listed his status as city manager in his Facebook profile, and posted items both about his personal life and information related to his job. He highlighted communications from other city officials. Sometimes he solicited feedback from the public. Citizens posted comments on the page, including questions about city services. He often replied to comments. He sometimes deleted comments. The plaintiff posted comments criticizing the city's response to the COVID-19 Pandemic. The defendant initially deleted the comments. He ultimately blocked the plaintiff. Once blocked, the plaintiff could see the posts but could not comment on them. He sued the defendant alleging violation of his 1st Amendment rights by engaging in impermissible viewpoint discrimination. The district court granted the defendant summary judgment on the ground that he was not engaging in state action. The Sixth Circuit affirmed, holding that an official's activity on social media is state action if state law requires him to maintain a social media account, the official uses state resources or government staff to run the account, or the account belongs to an office rather than an individual officeholder.
The Supreme Court rejected this test. The court ruled that a public official’s social-media activity constitutes state action under 42 U.S.C. section1983 only if the official (1) possessed actual authority to speak on the public entity's behalf, and (2) purported to exercise that authority when he spoke on social media. The first prong is based on the requirement that an act is not fairly attributable to the state unless it is traceable to the state's power or authority, rather than private action. The official must have actual authority, rooted in written law or longstanding custom, to speak for the entity; and the authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff can make that threshold showing, he must also show that the official purported to use that authority, either by speaking in his official capacity or by using the speech to fulfill his responsibility pursuant to state law. Categorizing posts that appear on an ambiguous page like the defendant's is a fact-specific undertaking in which the post’s content and function are the most important considerations. TO preserve officials' 1st Amendment right to speak about public affairs in their personal capacities, a plaintiff must show that the official is purporting to exercise state authority in specific posts. The nature of the platform's technology also matters to the state-action analysis. For instance, 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. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.
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