By way of background, the law of agency defines what it means for one person (an agent) to represent another person (a principal). Its cardinal precept is that the act of an agent within the scope of the agency is treated as the act of the principal, whereas the act of an agent outside the scope of the agency belongs to the agent personally. A key corollary of public sector agency law is that the acts of government agents are governmental acts only if the agent exercised some actual authority delegated to the agent by the government. Apparent authority does not count.
Twice in the last three years, the Supreme Court has used these ideas to define the First Amendment rights and duties of public employees. A 2022 decision involved a high school football coach who was fired because he knelt in prayer at the 50-yard line after football games, contrary to orders from the school district. The Court held that the coach was engaged in private speech protected by the First Amendment, and not speech on behalf of the government that the government had a plenary right to control, because the coach was not acting to fulfill “his duties as a coach,” even if “a reasonable observer could (mistakenly)” have thought otherwise. The Court said that the coach could have been fired if he had misused his authority as a coach to coerce others to join him in prayer but found no evidence he had done so.
A 2024 decision involved a city manager who posted about his job on his personal Facebook page, blocked a critic of pandemic restrictions from responding to his posts, and then was sued by the critic for allegedly engaging in government censorship violative of the critic’s First Amendment rights. The Court held that liability depended on whether the city manager had actual authority from the government to post about his job on behalf of the government and had purported to use that authority in the relevant posts (factual issues left for the lower court after remand). The Court emphasized that actual authority was required; the mere appearance that the city manager had been acting in a governmental capacity was not enough.
Taken together, these two decisions establish the rule that the First Amendment rights and duties of public employees depend largely on whether the public employee was acting in a private or public capacity. In a private capacity, the employee has First Amendment rights. In a public capacity, the employee has First Amendment duties. The decisions also establish the test for distinguishing the public and private acts of government employees. The key question is whether the employee used or misused some actual governmental authority delegated to the employee by the government. If so, the employee will be deemed to have acted in a public capacity. If not, the employee will be deemed to have acted in a private capacity. The mere appearance that the employee was acting in a public capacity will not change the private nature of the employee’s act.
This article will examine the two decisions, starting with the earlier ruling, and analyze their agency approach to judging the First Amendment rights and duties of public employees.
Constitutional Litigation and the Concept of Agency
A frequent issue in constitutional litigation is whether the act of a person with some connection to government should be treated as an act of government or as the private act of that individual. The issue arises in a variety of contexts. For example, in cases involving the religion clauses of the First Amendment, courts must decide whether the religious conduct at issue was governmental conduct prohibited by the establishment clause or private conduct protected by the free exercise clause. Similarly, in cases involving speech by public employees, courts must decide whether the relevant speech was private speech protected by the free speech clause or governmental speech (that is, speech on behalf of the government) that the government has a plenary right to control. Likewise, in cases involving the Fourteenth Amendment of the U.S. Constitution, courts have to determine whether the conduct at issue was private conduct beyond the purview of the constitutional provision or governmental conduct subject to its strictures.
The body of precedent to which courts turn to answer these questions about whether the acts of one person should be attributed to some artificial entity is known as the law of agency. A division of the law of persons, agency law applies whenever a person (an agent) consents to act on behalf of another person (a principal) for the principal’s benefit and subject to the principal’s control.
The starting premise of agency law is that legal personality is a construct that people can expand through representation by agents. Helpful for natural persons, this power to act through agents is essential for artificial persons like corporations and governments because, being intangible legal fictions, these entities can only operate in the real world through the agency of human representatives.
Because an agent acts as an extension of the principal’s legal personality, the agent does not simply act for the principal. Within the scope of the agency, the agent acts as the principal. In other words, while acting within the scope of the agency, the agent acts as the principal’s alter ego, or other self, such that the acts of the agent are treated as if they were the acts of the principal.
The classic expression of this idea is a Latin maxim of canon law dating back to the time of the Magna Carta. First expressed as a simile treating the authorized actions of agents “as if” they were the principal’s direct actions, the maxim was later shortened to a metaphor equating the agent’s authorized actions with direct actions of the principal: Qui facit per alium, facit per se (which can be translated into modern speech as “Who acts through another, acts directly”).
The heartland of the qui facit maxim are cases in which the agent acted with the actual authority of the principal. In cases involving private agents, courts used their quasi-legislative authority to shape the common law to extend the qui facit concept to hold employers responsible for some unauthorized conduct. For example, in 1871, the U.S. Supreme Court recognized the doctrine of apparent authority, under which actors who are held out by a principal as having a particular authority will be treated as if they really did have that authority (even if, in fact, they did not) to the extent needed to protect third parties who reasonably believed in the appearance of authority created by the principal.
By contrast, the courts were much more restrained in cases involving public agents, leaving the expansion of the qui facit idea to the legislatures and, absent a contrary legislative directive, refusing to treat unauthorized actions by government agents as if the actions were authorized. For example, in 1877, the U.S. Supreme Court held that the private sector doctrine of apparent authority did not apply to the government.
Congress has authorized some expansion of the qui facit idea. Most relevant for our purposes are federal civil rights statutes enacted to enforce the Fourteenth Amendment that impose federal criminal and civil liability on persons who violate the constitutional rights of others through actions taken “under color of” state law. The Supreme Court has interpreted these laws to mean that government employees who misuse governmental authority delegated to them will be treated as acting in an official capacity for purposes of the Fourteenth Amendment, even if the government did not authorize their misuse of authority to commit wrongful acts.
Two recent decisions illustrate how the U.S. Supreme Court has used these basic principles of public sector agency law to define the First Amendment rights and duties of public employees.
Kennedy v. Bremerton School District (2022)
Joseph Kennedy worked as a football coach at Bremerton High School beginning in 2008. For years, he made it his practice to kneel at midfield after each game to give thanks through prayer. At first, Kennedy prayed alone, but later, after his players asked to join him, he led group prayers. In 2015, the Bremerton School District ordered him to stop the religious activity. The coach complied by discontinuing the group activity, but after a game he returned to the field after “everyone had left the stadium, . . . walked to the 50-yard line and knelt to say a brief prayer of thanks.”
The coach sent a letter to the school district asking for permission to pray alone at the 50-yard line after games, at a time when the players were engaged in other activities. The school district refused permission, telling Kennedy to avoid any on-field activities that might appear to a reasonable observer to endorse prayer, on the theory that such actions would violate the First Amendment’s prohibition against government establishment of religion. In violation of this directive, Kennedy persisted in kneeling “to offer a quiet prayer of thanks” on the football field after football games “during a period when school employees were free to speak with a friend, call for a reservation at a restaurant, check email, or attend to other personal matters.” In response, the school district placed Kennedy on administrative leave and eventually terminated his employment.
Kennedy filed suit in federal court, alleging that the school district violated his rights under the free speech clause and the free exercise clause of the First Amendment. On cross-motions for summary judgment, the district court ruled for the school district on the ground that allowing Kennedy’s conduct would have invited a violation of the First Amendment’s establishment clause. The U.S. Court of Appeals for the Ninth Circuit affirmed. By a vote of six to three, the U.S. Supreme Court reversed, holding that the coach’s activities did not violate the First Amendment but, on the contrary, were protected by the First Amendment.
The Supreme Court began its analysis by finding that the school district had discriminated against Kennedy based on his religious activities, which was a presumptive violation of Kennedy’s rights under the provision of the First Amendment protecting the free exercise of religion. Whether this was justified, the Court said, depended on whether the school district had disciplined Kennedy for actions he had taken in his official capacity. After all, the Court noted, “[i]n addition to being private citizens, teachers and coaches are also government employees paid in part to speak on the government’s behalf and convey its intended messages.” Consequently, the Court went on, “[i]f a public employee speaks ‘pursuant to [his or her] official duties,’” the free speech clause of the First Amendment “will not shield the individual from an employer’s control and discipline because that kind of speech is—for constitutional purposes at least—the government’s own speech.”
Applying this test, the Supreme Court held that the coach was not acting pursuant to his official duties when he knelt in prayer and was not engaged in any type of speech the school district “paid him to produce as a coach.” The Court noted that the prayers took place when the school’s “coaching staff was free to engage in all manner of private speech.” The Court also said that the fact that “Kennedy offered his prayers when students were engaged in other activities like singing the school fight song further suggests that [Kennedy’s] prayers were not delivered as an address to the team, but instead in his capacity as a private citizen.”
The Supreme Court rejected the argument that Kennedy was engaged in official activity because it was part of his job to serve as a role model for students, noting that by this logic “a school could fire a Muslim teacher for wearing a headscarf in the classroom or prohibit a Christian aide from praying quietly over lunch.” For similar reasons, the Court rejected the argument that tolerating Kennedy’s conduct would amount to government establishment of religion in violation of the establishment clause of the First Amendment because “a reasonable observer could (mistakenly) infer that by allowing the prayer” the school district endorsed Coach Kennedy’s religious message. What mattered was the reality, not the appearance. The Supreme Court said that “the Establishment Clause does not include anything like a ‘modified heckler’s veto, in which . . . religious activity can be proscribed’ based on ‘“perceptions” or “discomfort.”’”
The Supreme Court went on to reject the argument that Kennedy misused his authority as a coach to coerce students to join him in prayer, noting that the theory was completely unsupported by the evidence: “not a single Bremerton student joined Mr. Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined.” Finally, the Court rejected the argument that any display of religion by a teacher or coach should be deemed impermissibly coercive as a matter of law. The Court explained that reading the establishment clause so broadly would have absurd consequences: “Not only could schools fire teachers for praying quietly over lunch, for wearing a yarmulke to school, or for offering a midday prayer during a break before practice. Under the [school district’s] rule, a school would be required to do so.” The school district’s argument, the Court said, went against the basic rule “that permitting private speech is not the same thing as coercing others to participate in it.”
Justice Sotomayor, joined by Justice Breyer and Justice Kagan, dissented. The main argument was that “[t]o the degree the Court portrays petitioner Joseph Kennedy’s prayers as private and quiet, it misconstrues the facts.” The dissent noted that before the school district told him to stop leading prayers, “Kennedy consistently invited others to join his prayers and for years led student-athletes in prayer at the same time and location.” After receiving orders from the school district to stop his religious activity, “Kennedy made multiple media appearances to publicize his plans to pray at the 50-yard line,” and even if he did not invite others to join him then, he had invited “others to join him on many previous occasions.” Therefore, the dissent said, the school district had a strong argument that “Kennedy’s speech, formally integrated into the center of a [school district] event, was speech in his official capacity as an employee that is not entitled to First Amendment protections at all.” Moreover, the dissent argued, the school district’s action was justified to avoid a violation of the establishment clause because “Kennedy did not intend to pray quietly, but to thrust the [school district] into incorporating a religious ceremony into its events.”
The Supreme Court’s decision in this case was highly controversial, but the controversy within the Court itself was mainly over the proper interpretation of the facts. According to the majority opinion, Kennedy was just trying to exercise his constitutional right to pray and was not using his government authority to require others to join him. According to the dissent, Kennedy was trying to continue his past practice of leading group prayers in his capacity as a coach.
Despite this factual dispute, the justices were in general accord as to governing principles. All seemed to accept that the case turned on whether Kennedy was acting in his private or official capacity. All seemed to agree that government employees act in their official capacity when they use or misuse their actual authority vested in them by the government. There was also no dispute that if Kennedy was simply engaged in private speech, his conduct was protected by the First Amendment, and if he was trying to use his authority as a coach to lead group prayers, his conduct violated the First Amendment.
That there was more agreement than disagreement became evident in 2024 when the Supreme Court decided another case involving the First Amendment rights and duties of public employees. This time, the Supreme Court unanimously agreed on a standard and then remanded the case to the lower court for application of that standard to the facts of the case.
Lindke v. Freed (2024)
Sometime before 2008, while he was a college student, James Freed created a private Facebook profile. Other Facebook users to whom he granted permission became his Facebook “friends” and could generally see and comment on his posts. When Freed began nearing the platform’s 5,000-friend limit, “he converted his profile to a public ‘page.’ This meant that anyone could see and comment on his posts.”
In 2014, Freed became the city manager of Port Huron, Michigan. He updated his Facebook profile to reflect his new role and often supplemented his personal posts on his Facebook page with posts about his job as city manager. In 2020, Freed began posting about the COVID-19 pandemic. These posts included personal posts, posts about Freed’s job, and “general information, like case counts and weekly hospitalization numbers.”
Unhappy with how the city was handling the pandemic, Kevin Lindke visited Freed’s Facebook page and posted comments critical of the city’s pandemic policies. For example, after Freed posted a photo of “himself and the mayor picking up takeout from a local restaurant,” Lindke posted a comment complaining about how “the city’s leaders were eating at an expensive restaurant” when they should have been “out talking to the community.” Freed deleted Lindke’s comments and later blocked him entirely, which meant that Lindke could no longer post comments on Freed’s Facebook page.
Lindke responded by suing Freed under 42 U.S.C. § 1983, which creates a federal cause of action for anyone whose constitutional rights have been violated “under color of” state law. Lindke claimed that Freed’s Facebook page had become a government forum and that, by blocking Lindke’s comments, Freed engaged in government censorship violative of Lindke’s First Amendment rights. The district court granted summary judgment to Freed on the ground that his Facebook page was personal, not governmental. The U.S. Court of Appeals for the Sixth Circuit affirmed, holding that a government official’s Facebook page would become governmental only if the text of state law requires the official to maintain an account, the official uses government resources for the account, or the account belongs to the government. Because the U.S. Courts of Appeal for the Second and Ninth Circuits used tests that focused “less on the connection between the official’s authority and the account and more on whether the account’s appearance and content look official,” the U.S. Supreme Court decided to review the case to resolve the conflict between the federal circuits and clarify the law in the area.
The Supreme Court began its analysis by noting that both § 1983 and the Fourteenth Amendment apply only to state action, not to private action, and that since government officials have private lives, not everything they do constitutes state action. The Court emphasized the importance of distinguishing between the private and official acts of public employees, noting that “[w]hile public officials can act on behalf of the State, they are also private citizens with their own constitutional rights.” For example, “Freed did not relinquish his First Amendment rights when he became city manager.” As long as he was outside the scope of his official duties, Freed had a right to comment on government policy on his personal Facebook page and to exercise editorial control over his page. “Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own.”
The Supreme Court then held that “a public official’s social-media activity constitutes state action”—that is, governmental action rather than private action—“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.” The Court emphasized that both steps must be satisfied for there to be state action and that the first step requires actual authority, not apparent authority. The Court said: “The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.”
Later in its opinion, the Court reiterated this actual authority requirement. The Court said: “An act is not attributable to a State unless it is traceable to the State’s power or authority. Private action—no matter how ‘official’ it looks—lacks the necessary lineage.” Therefore, the Court went on, “Freed’s conduct is not attributable to the State unless he was ‘possessed of state authority’ to post city updates and register citizen concerns.” Lindke’s arguments were deficient, the Court said, because they overlooked this key point. “Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage.”
The Supreme Court went on to clarify that it was not saying that the allegedly wrongful conduct itself (such as the blocking of Lindke based on his political viewpoint) must be authorized by the government. Quoting in part from a 1941 precedent, the Court said: “To be clear, the ‘[m]isuse of power, possessed by virtue of state law,’ constitutes state action.” The Court explained: “While the state-action doctrine requires that the State have granted an official the type of authority that he used to violate rights—e.g., the power to arrest—it encompasses cases where his ‘particular action’—e.g., an arrest made with excessive force—violated state or federal law.” Indeed, the Court continued, every lawsuit filed under 42 U.S.C. § 1983 “alleges a misuse of power, because no state actor has the authority to deprive someone of a federal right.” The Court then pivoted back to its main point, noting: “To misuse power, however, one must possess it in the first place.”
The Court explained that inquiry into actual authority “requires careful attention to the relevant statute, ordinance, regulation, custom, or usage. In some cases, a grant of authority over particular subject matter may reasonably encompass authority to speak about it officially.” Citing the Kennedy decision discussed above, the Court cautioned that “courts must not rely on ‘excessively broad job descriptions’ to conclude that a government employee is authorized to speak for the State.” The proper inquiry “is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.”
Lest there be any misunderstanding about the Court’s actual authority requirement, the Court then reiterated: “[A] defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.”
In the remainder of its opinion, the Supreme Court explained the second step in its required analysis: that the state official not only must have actual authority but also must purport to use it in the challenged action. This requirement was necessary because “State officials have a choice about the capacity in which they choose to speak. . . . If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice.” That private speech is constitutionally protected; public officials “have the right to speak about public affairs in their personal capacities. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” The Court went on to note that “when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business.” The Court concluded by remanding the case to the lower court for further analysis consistent with the Court’s opinion.
Thus, as in the Kennedy decisiondiscussed earlier, the critical question was whether the public employee was acting in a personal or official capacity. In a personal capacity, the employee had First Amendment rights. In an official capacity, the employee had First Amendment duties. Moreover, again as in Kennedy, an employee would be deemed to be acting in an official capacity only if the employee used or misused actual authority delegated to the employee by the government. Apparent authority did not count.
Capacity and Authority Are Key Factors
The recent decisions in Kennedy and Lindke show how the U.S. Supreme Court uses agency principles to determine whether government officials are acting in a private or official capacity for purposes of constitutional adjudication and how the private sector doctrine of apparent authority does not apply to the government. More generally, the decisions show that agency principles are not limited to business cases but come into play whenever courts must decide whether the actions of a person should be attributed to some artificial entity.
A practical lesson from the decisions is that determinations of whether a government official acted in an official capacity for purposes of constitutional adjudication depend on the actual authority vested in the official and whether that authority was used or misused in the allegedly unconstitutional conduct. The actual authority requirement poses a factual question that requires careful attention to the evidence. The inquiry is not whether the official’s conduct could fit within the job description but whether it is actually part of the job entrusted to the official by the governmental entity. Cases should not be decided based on broad presumptions, overly expansive job descriptions, or false appearances of authority.
