Lindke v. Freed

FREE SPEECH

Can a Public Official Block Individuals from Their Social Media Page?

 CASE AT A GLANCE

Local public officials in these cases maintained public Facebook pages. In Lindke v. Freed, the official posted both personal and official information; in O’Connor-Ratcliff v. Garnier, , the officials posted information related to their offices. In both cases, the officials blocked certain individuals. Those individuals sued, arguing that the officials violated their First Amendment rights. Tthe Court has never said whether a government official’s maintenance of a social media page constitutes state action, and must now answer the question: Can public officials block individuals from their social media pages?

  Lindke v. Freed and O’Connor-Ratcliff v. Garnier
Docket Nos. 22-611 and 22-324

Argument Date: October 31, 2023 From: The Sixth Circuit and The Ninth Circuit

by Steven D. Schwinn
University of Illinois Chicago School of Law, Chicago, IL 

Introduction

As a general matter, the First Amendment applies only to government action or to government officials who act “under color of” law. In some limited circumstances, private individuals can fall within this “state actor” requirement, so long as their behavior is “fairly attributable to the State.” But the Court has never said whether a government official’s maintenance of a social media page constitutes state action.

Issue

Does a public official act “under color of” law by maintaining a public social media page?

Facts

These two cases share a common legal issue, but they involve different underlying facts. Let’s take them one at a time.

Lindke v. Freed

For years, James Freed had a private Facebook profile limited to his “friends.” But Freed eventually exceeded Facebook’s 5,000-friend limit, so he converted his profile to a public “page,” which anyone (friend or not) could “follow.” Freed identified himself as a “public figure.”

In 2014, Freed was appointed city manager for Port Huron, Michigan. He updated his Facebook page to reflect his new role, and in the “About” section identified himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Office for the citizens of Port Huron, MI.” Freed designated the Port Huron official website as his page’s website, the city’s general email address for “City Administration and Staff ” as his page’s contact information, and the city hall address as his page’s address.

Freed posted a variety of personal and professional activities and information. For example, he shared images of his daughter’s birthday, his visits to community events, and his family’s picnics. He also shared certain information related to his position as city manager, including information related to COVID-19 and Port Huron’s policies to address the pandemic.

Kevin Lindke apparently didn’t like Freed’s posts related to COVID-19. Lindke posted his criticisms in the comments section of Freed’s posts, but Freed deleted them and eventually blocked Lindke from the page. This move prevented Lindke from further commenting on Freed’s page.

Lindke sued Freed, arguing that Freed acted “under color of” law and violated his First Amendment rights. The district court ruled for Freed, and the Sixth Circuit affirmed. This appeal followed.

O’Connor-Ratcliff v. Garnier

Michelle O’Connor-Ratcliff and T.J. Zane won seats on the board of trustees for the Poway Unified School District (PUSD), in San Diego, California. Both O’Connor- Ratcliff and Zane had private Facebook pages before their elections, which they shared only with family and friends. But during and after their elections, both O’Connor- Ratcliff and Zane created public Facebook pages to promote their campaigns and share their official work as members of the board. O’Connor-Ratcliff described herself as a “Government Official,” listed her “Current Office” as President of the PUSD Board of Education, and provided a link to her official email address. Like O’Connor- Ratcliff, Zane described himself as a “Government Official” and described his interests to include “being accessible and accountable; retaining qualified teachers; increasing transparency in decision making; preserving local standards for education; and ensuring our children’s campus safety.” Zane titled his page “T.J. Zane, Poway Unified School District Trustee” and described his page in the “About” section as “the official page for T.J. Zane,

Poway Unified School District Board Member, to promote public and political information.”

Only O’Connor-Ratcliff and Zane could post on their official pages. Both posted on PUSD and board-related activities and business, including their visits to schools, achievements of PUSD students and teachers, and board- related information. Both occasionally solicited feedback from their constituents in their posts or responded to constituent questions and comments, all related to PUSD issues. Constituents (and others) could comment on the trustees’ posts, or simply register a “like” or thumbs-up symbol or similar emoji.

Christopher and Kimberly Garnier, parents of children in PUSD schools, were active in PUSD issues for years.

They regularly attended board meetings, emailed trustees, and met with individual trustees to express their concerns about race relations in the district and alleged financial wrongdoing by the superintendent. (Following two incidents around 2014, the Garniers and PUSD officials filed a series of lawsuits against each other.)

Starting in 2015, the Garniers began commenting on the trustees’ social media pages. Their comments were often quite lengthy and repetitive. In response, O’Connor- Ratcliff and Zane deleted or hid the Garniers’ comments on their official Facebook pages. Later, both trustees blocked both of the Garniers from their pages. Separately, both trustees used the “word filter” feature on Facebook effectively to prevent all verbal comments on their posts. As a result, their followers (except the Garniers, who were still completely blocked) could register nonverbal reactions (a “like” or an emoji), but they could not post verbal comments.

The Garniers sued the trustees, arguing that they acted “under color of” law and had violated their First Amendment rights. The district court ruled for the Garniers, and the Ninth Circuit affirmed. This appeal followed.

Case Analysis

As a general matter, the First Amendment applies only against the government and government officials who are acting “under color of” law. (The plaintiffs in these cases sued under 42 U.S.C. § 1983, which authorizes a plaintiff to sue a person acting “under color of” law for violations of the Constitution or federal law.) This is called the “state actor doctrine.” It means that we enjoy free speech rights against the government or government officials acting in their official capacities, but we have no free-speech rights under the First Amendment against purely private individuals or organizations or government officials acting only as private persons. In general, this requirement turns on whether a person’s actions are “fairly attributable to the State.” Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982).

The Court has recognized situations where otherwise private actions are “fairly attributable to the State”—for example, where private actors are sufficiently entangled with the government—so that the First Amendment applies. But the Court has never ruled on whether and how the First Amendment might apply to a public official’s social media site.

The lower courts applied two different tests. The Sixth Circuit ruled that Freed did not act “under color of” law because his conduct was not pursuant to his official authority or duties as a government official. The Ninth Circuit ruled that O’Connor-Ratcliff and Zane acted “under color of” law because their conduct had a “close nexus” to their official positions, based on the appearance, function, and content of their pages.

The parties in the two cases wrangle over which test to apply—the “authority or duty” test from the Sixth

Circuit, or the “appearance and function” (or “appearance and purpose”) test from the Ninth Circuit—and how those tests apply to the very different facts of each case. (Lingering within these arguments is a special situation— the off-duty police officer who engages in conduct outside their authority or duty, but (by virtue of their uniform or other official trappings) with the appearance of government authority. The parties dispute whether and how the Court should consider this special situation in crafting a rule and applying it to this case.)

Again, let’s look at the cases one at a time.

Lindke v. Freed

Lindke argues first that the phrase “under color of” historically included public officials who “invoked the pretense of governmental authority.” He contends that by the time Congress enacted the Ku Klux Klan Act, the predecessor to Section 1983, this meaning was incorporated into American law. As a result, “under color of” included deprivations “committed by the Klan with the connivance of public officials.” According to Lindke, this history shows that the phrase “under color of” encompasses a broader swath of behavior, not just a public official’s narrow actions under a duty or authority of office.

Lindke argues next that identifying state action requires courts to consider both the appearance and function of a person’s actions. In other words, if a public official “invokes the semblance (even if not the reality) of governmental authority,” or if a public official’s conduct “serves governmental purposes or functions,” it can constitute state action. Lindke says that “[a] public official who blurs the line between official and private use—purporting to speak on the government’s behalf and performing governmental functions—can reasonably be held responsible for any resulting role-ambiguity.”

Lindke argues that the Sixth Circuit ignored appearance and function, and wrongly focused only on Freed’s official duty or authority. He says that the lower court erroneously thought that Freed’s conduct “must have been made possible only by virtue of governmental power.” He claims that the court’s approach would wrongly encompass only an official’s behavior pursuant to their official duties or authorities while performing nongovernmental functions, and not their behavior that gave the appearance of government authority. He contends that the court wrongly “relied on a property-based argument that Freed’s Facebook account belonged to him personally, not to the City.” He asserts that the court erroneously “held that appearance is irrelevant if the pretense of authority does not give a public official’s social media use ‘the force of law.’” And he claims that the court “was wrong that a duty- or-authority test is necessary to prevent every job-related communication by a public official from being state action.”

Finally, Lindke argues that under the proper “appearance and function” test Freed’s conduct was “under color of” law. He writes that “Freed designed the page to appear as an official government outlet and used it to perform public responsibilities, including announcing official City business to his constituents and soliciting their feedback.” Lindke says that if the Court doesn’t want to draw this conclusion itself, it should remand the case to the district to apply these principles.

Freed counters that a government official’s operation of their social media page does not constitute state action unless it’s part of the official’s duty or authority. He says that the phrase “under color of” historically meant “pursuant to” or “under authority of,” not (as Lindke contends) “under the pretense of.” Moreover, he claims that an official’s use of social media is not fairly traceable to the government unless the official “is performing an actual duty of [their] office or could only behave in a particular manner because of [their] government employment.” He claims that “[a]dopting a state action test that is not tied to an employee’s governmental duty or authority will adversely impact First Amendment rights of government employees.”

Freed argues next that the appearance and function of an official’s social media site cannot create state action unless the official is exercising “actual state duty or authority.” He says that civilian officials and employees “routinely engage in speech related to their duties in their personal rather than official capacit[ies],” and that “[t]he only workable way to determine whether such speech carries out their duties is to consider whether the State requires, controls, or facilities it.” He contends that this test isn’t met here.

Moreover, Freed asserts that Lindke’s approach would extend “color of law” to hold officials liable for otherwise legal behavior (as here).

Freed argues that viewed properly he did not operate his Facebook page “under color of” law. He says that viewing his page as a whole (as opposed to looking just at isolated posts), his page overwhelmingly indicates that it is not official. He points out that many of his posts are personal; he did not identify himself only as a government official; and he is not required to maintain a page or to post on it as part of his duties. Freed also points out that while the Sixth Circuit ruled that his conduct did not constitute state action under the “duty or authority” test, the district court ruled that his conduct did not constitute state action under the “appearance and function” test. He says that he wins either way.

The government weighs in as amicus in support of Freed. The government contends that Freed’s Facebook page wasn’t government property—it was Freed’s private property—and that the Court shouldn’t find state action when an official excludes others from private property “unless the official is invoking official powers or exercising a traditional and exclusive public function.”

The government contends that neither applied here: Freed wasn’t invoking official power, and he wasn’t exercising an exclusive public function. The government asserts that Lindke’s “appearance or purpose” test is too broad and “would transform communications in private spaces into official action—subject to constitutional constraints, on penalty of money damages—simply because those communications refer too heavily to an official’s role or overlap too much with the interests the official seeks to further at work.”

O’Connor-Ratcliff v. Garnier

The trustees argue first that an official’s operation of their social media page is not state action unless the official exercises actual state duty or authority. They argue that when officials communicate about their jobs outside of their official duties or authorities, they communicate in their private capacities, and this communication cannot be attributed to the government. They contend that any broader approach to state action would allow the government to “take over the pages completely” and “would penalize [their] protected speech.” The trustees say that they “exercised no actual state duty or authority” in maintaining their pages, and therefore they did not act “under color of” law.

The trustees argue next that neither the appearance nor content of an official’s social media page can create state action unless the official acted pursuant to actual state duty or authority. As to appearance, they say that “[n]o reasonable user could mistakenly believe that [their] pages were governmental, especially given various features incompatible with that status.” Moreover, they claim that appearance is immaterial because (unlike off-duty police officers) they “gained no power from any hypothetical misperception.” As to content, they contend that this is immaterial, too. They assert that officials “routinely engage in speech related to their duties in their personal rather than official capacity,” and that “[t]he only workable way to determine whether such speech carries out their duties is to consider whether the State requires, controls, or facilities it.” They say that this did not occur here. Finally, they contend that the Ninth Circuit’s broader approach “will cause citizen-officials to censor their own” speech—a result at odds with core First Amendment values.

The government weighed in on this case, too, again in support of the officials. As in Lindke, the government argues here that “the school board indisputably lacks ownership or control over petitioners’ social-media accounts,” and that the trustees’ maintenance of their pages did not constitute state action.

The Garniers counter that in maintaining their social media sites, the trustees were doing their jobs, and they were therefore engaged in state action. They contend that under Court precedent the trustees’ position as public officials creates a “clear presumption” that they are state actors. Moreover, they say that the trustees’ identity as state actors does not depend on any express authority for their actions; instead, they assert that “this Court has held that the Fourteenth Amendment’s state action requirement is satisfied even by actions that are unauthorized by (or even violate) state law as long as they occur while an official is doing his or her job” or where the government “cannot fairly be blamed.” The Garniers contend that history and current law support their interpretation.

The Garniers argue that under these principles the trustees were state actors. They say that the trustees were doing their jobs by maintaining their social-media pages because state law and the bylaws governing the trustees “treat keeping the public informed and communicating with the public as responsibilities of school board members.” Moreover, they assert that one of the trustees testified at trial that they maintained their social media page pursuant to this responsibility. They contend that their conclusion “is reinforced by the way [the trustees] presented and administered the pages.”

The Garniers argue that the trustees’ and government’s arguments lack merit. They say that those arguments “share a flawed premise: that there was no state action here because the [PUSD] did not require, control, or facilitate the Trustees’ social media.” They contend that government “control or facilitation” simply doesn’t matter in a case against government officials. They assert that officials often use their own property to do their jobs, and that they often communicate messages that are both private and official. The touchstone of state action, they say, is whether an official is doing their job. And they contend that the trustees were doing their jobs here.

Finally, the Garniers argue that because the trustees acted “under color of” law, the real question in the case turns on First Amendment principles. They say that those principles give the trustees some flexibility “to exercise legitimate and reasonable control over social media accounts” while at the same time “avoid[ing] the risk of invidious discrimination.”

Significance

These cases follow (and echo) the now-defunct case against then-President Donald J. Trump for blocking individuals from his own social media account. The Second Circuit held that Trump acted in his official capacity in maintaining his social media account, that the First Amendment therefore applied, and that Trump violated the First Amendment by blocking users. Knight First Amendment Institute at Columbia University v. Trump, 928 F.3d 226 (2d Cir. 2019). After Trump left office, however, the Court dismissed the case as moot and vacated the Second Circuit judgment.

While the issue may (or may not) arise again with Trump, it will certainly arise again with other government officials. (Indeed, circuit courts have already ruled in at least two other cases.) The Court’s decision, one way or the other, will impact how public officials maintain their social media pages, and the rights that individuals have to post on them.

At the same time, though, it’s important to remember the limits of this case. The question for the Court is whether the First Amendment applies to public officials’ social media pages, not how it applies. So even if the Court rules that the First Amendment applies to these cases, it’s unlikely to say whether the officials’ actions actually violated the First Amendment. In other words, even if the Court rules that either or both sets of officials acted “under color of ” law, we may have to wait for the next case to learn how the Court will assess the substantive First Amendment claim.

IN 22-611

ATTORNEYS FOR THE PARTIES

For Petitioner Kevin Lindke (Allon Kedem, 202.942.5000)

For Respondent James R. Freed (Victoria Read Ferres, 810.987.8444)

AMICUS BRIEFS

In Support of Petitioner Kevin Lindke

• American Atheists, Inc. (Geoffrey Thomas Blackwell, 908.276.7300)
• American Civil Liberties Union (David D. Cole, 212.549.2611)
• Electronic Frontier Foundation, Knight First Amendment Institute at Columbia University, and Woodhull Freedom Foundation (David Allen Greene, 415.436.9333)
• First Amendment Clinics, Citizens, and Journalists (Gregg P. Leslie, 480.727.7398)
• Foundation for Individual Rights and Expression (Robert Lawrence Corn-Revere, 215.717.3473)

In Support of Respondent James R. Freed

• NRSC (Jeremy Joseph Broggi, 843.812.1527) Tennessee, et al. (James Matthew Rice, 615.532.6026) Texas (Lanora Christine Pettit, 512.936.1700) United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)

In Support of Neither Party

• Local Government Legal Center, National Association of Counties, National League of Cities, and the International Municipal Lawyers Association (Caroline Payseur Mackie, 919.783.1108)
• NetChoice, the Cato Institute, Chamber of Progress and the Computer and Communications Industry Association (David Morris Gossett, 202.973.4200)

IN 22-324

• ATTORNEYS FOR THE PARTIES

For Petitioners Michelle O’Connor-Ratcliff and T.J. Zane

• (Hashim M. Mooppan, 202.879.3939)

For Respondents Christopher Garnier and Kimberly Garnier (Cory Jay Briggs, 909.949.7115)

• AMICUS BRIEFS

In Support of Petitioners Michelle O’Connor-Ratcliff and T.J. Zane

• California School Boards Association (Peter K. Fagen, 760.304.6000)
• NRSC (Jeremy Joseph Broggi, 843.812.1527) Tennessee, et al. (James Matthew Rice, 615.532.6026) Texas (Lanora Christine Pettit, 512.936.1700)
• United States (Elizabeth B. Prelogar, Solicitor General, 202.514.2217)

In Support of Respondents Christoper Garnier and Kimberly Garnier

• American Atheists, Inc. (Geoffrey Thomas Blackwell, 908.276.7300)
• American Civil Liberties Union Foundation (David D. Cole, 212.549.2611)
• Electronic Frontier Foundation, Knight First
• Amendment Institute at Columbia University, and Woodhull Freedom Foundation (David Allen Greene, 415.436.9333)
• First Amendment Clinics, Citizens, and Journalists (Gregg P. Leslie, 480.727.7398)
• Foundation for Individual Rights and Expression
• (Robert Lawrence Corn-Revere, 215.717.3473)
• Manhattan Institute (John J. Bursch, 616.450.4235)
• Protect The First Foundation (Gene Clayton Schaerr, 202.787.1060)

In Support of Neither Party

• Local Government Legal Center, National Association of Counties, National League of Cities, and the International Municipal Lawyers Association (Caroline Payseur Mackie, 919.783.1108)
• NetChoice, the Cato Institute, Chamber of Progress and the Computer and Communications Industry Association (David Morris Gossett, 202.973.4200)