Social media has not-so-long been a legal Wild West. The consequence of the American legal system’s affinity for incremental change is that the law updates slowly: meaning despite social media’s pervasive role in our daily lives for the past decade, the Supreme Court has barely scratched the surface of unraveling its legal implications. Slowly but surely, though, it is unavoidable. On the 2023-24 case docket, the Court will hear Lindke v. Freed.
Given social media’s role as everyone’s preferred form of communication, it is no surprise that public officials have taken to it to interact with their constituents. The legal question this situation prompts, however, is whether an official is acting in their role as a government official or as a private person on their social media account.
Review of Relevant Case Law
In 1988’s West v. Atkins, the Court determined when an employee of the state is acting under “color of state law,” the equivalent to acting in the role of a government official. In the words of Justice Harry Blackmun, “a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law.” If that sounds pretty cut and dry, it was. The Court had only to consider an employee that was acting “in the performance of his assigned tasks.” It is hard to argue that you are not acting as an extension of the state while completing a task you were assigned as an employee of the state.
A case like Lindke v. Freed is not quite so cut and dry. Keeping a social media account was not an ‘assigned task’ for James Freed, the city manager of Port Huron, Michigan. However, subsequent case law complicates the meaning of acting as an employee of the state—one can fulfill that role even outside of officially assigned tasks.
In 2006, the Court moved on to a more specific consideration of when an employee’s speech is protected by the First Amendment. In particular, Justice Anthony Kennedy in his majority opinion for Garcetti v. Ceballos wrote that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” The crucial language lies in ‘pursuant to official duties:’ if an employee is acting in their role as a government official—and not as a citizen—their speech is unprotected.
The connection between Garcetti and Lindke is not immediately apparent: in Garcetti, the protection of the official’s speech was in question; in Lindke, the protection of an ordinary citizen’s speech on a public official’s page is in question. Yet both hinge on the same standard: if, following Garcetti, City Manager Freed was not speaking ‘pursuant to official duties,’ his censorship of comments on his page does not constitute a First Amendment violation—because he is simply acting as any other citizen. Freed’s lawyer made just that argument in urging the Supreme Court to turn down the case – that the rule of Garcetti covers the case.
It was only in 2021 that social media was first looped into the problem with Knight First Amendment Institute v. Trump, in a case remarkably similar to Lindke. The question posed to the Court was whether it was a First Amendment violation when then-President Trump—a public official—blocked users from responding to his Twitter threads. Yet since by the time the question reached the Court Trump was no longer President, the justices sent the case back to the court of appeals for dismissal. In the only writing issued by the Court on the case, Justice Clarence Thomas concurred, saying “it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.” Under Justice Thomas’ logic, given that Twitter itself had the power to remove Trump’s account, it could not possibly be a public forum.
While Justice Thomas’ logic flows from a strictly originalist understanding of what a public forum looks like, the Court of Appeals recognized that we no longer have town criers standing on street corners to communicate about politics. Ruling that even an official account does not constitute a public forum holds the potential to reverberate serious consequences on modern-day political discourse. The salient logic flowing from the opinion of the Court of Appeals for the 2nd Circuit on the Knight case decides Trump’s account was a public forum on two conditions: it was an official, outward-facing account and he interacted with the public at length on this account.