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Uncharted Waters: Unpacking Speech on Social Media in Lindke v. Freed

by Victoria Freeman, 2023 Summer Intern, Georgetown University

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. This distinction is crucial, because it determines whether such an official violates the First Amendment by, for example, blocking a user they disagree with—the question presented in Lindke v. Freed.

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. 

Implications for Freedom of Speech on Social Media

The trend among courts across the country, as well as from the Supreme Court itself, is to champion users’ freedom of speech as much as possible on social media. That’s all well and good, but the problem lies in when the freedom of users over their own pages and accounts conflicts with the freedom of speech of those who want to interact with their page–which could be a designated public forum, as the Court of Appeals argued of Trump’s Twitter in Knight

Indeed, one of the most important takeaways from the Court of Appeals for the 6th Circuit’s opinion in Lindke v. Freed is its lack of general applicability. The Circuit ruled that Freed’s page was personal, as opposed to a public forum, but urged that whether a public official’s social media account constitutes state action or not would vary on a case-by-case basis. Judge Amul Thapar even specifically acknowledged that we are in uncharted waters, writing, “the caselaw is murky as to when a state official acts personally and when he acts officially. That imprecision is made even more difficult here, since we must apply the doctrine in a novel setting: the ever-changing world of social media.”

If its decision in Gonzalez v. Google is any indication, in Lindke, the Supreme Court will likely uphold the 6th Circuit’s choice to allow Freed jurisdiction over his page. By fully upholding Section 230 of the Communications Decency Act, the Court ruled social media websites are not liable for what their users post, preserving full free discourse on the platforms. The logic of such a ruling cannot be mapped perfectly onto Lindke v. Freed, but it demonstrates an attempt at upholding users’ free rein over their own pages that suggests the Court would be reluctant to rule in favor of preventing even a public official from determining the content of his own account. 

Cases Referenced: 

West v. Atkins 

Garcetti v. Ceballos 

Lindke v. Freed, Brief in Opposition to Granting a Writ of Certiorari 

Biden v. Knight First Amendment Institute

Knight First Amendment Institute at Columbia University v. Trump 

Lindke v. Freed, Opinion of the 6th Circuit