Does blocking a constituent on your social media page violate their constitutional rights? The Supreme Court has new guidance

By Sheri Chapman, general counsel

The U.S. Supreme Court last Friday issued a unanimous decision establishing a new test to determine when a public official’s actions on their personal social media page may violate a person’s right to free speech.

The issue before the court in Lindke v. Freed was whether a Michigan city manager violated the First Amendment when he deleted comments and blocked a constituent on his personal Facebook page. This page contained both personal and work-related posts. Similar issues have come before the courts before, with different tests and outcomes.

In Lindke, the Supreme Court clarified that a public official who prevents someone from commenting on their personal social media page may be considered to be speaking for the government — thus creating free speech concerns — only if two conditions are met: The official has actual authority to speak on the government’s behalf on that matter and purported to use that authority when speaking on social media.

Writing for the court, Justice Amy Coney Barrett observed, “Freed did not relinquish his First Amendment Rights when he became a city manager.” On the contrary, “the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”

The court recognized this right could include exercising editorial control over speech and speakers on a public official’s personal social media page. It concluded that a public official’s authority to speak on behalf of the organization must be rooted in written law or longstanding custom and extend to the type of speech that is in question, finding it must be within the official’s “bailiwick.”  

The court also found that “if the official has authority to speak for the [government], they may have the authority to do so on social media even if the law does not make that explicit.”

Notably, the court ruled that if a social media account is labeled as personal or has a disclaimer that the views expressed are personal, there is a heavy presumption that the posts are personal. Absent such a label or disclaimer, the analysis requires a fact-specific review. In those instances, the posts’ content and function are the most important considerations.

The court explained that a post that expressly invokes government authority to make an announcement not available elsewhere is “official.” A post that merely repeats or shares otherwise available information is more likely “personal.” When there is doubt, other factors come into play, such as whether government resources were used to post.

The court also held the nature of the social media used by the official should be a part of the analysis. It distinguished between deleting comments and blocking access. According to the court, a censorship tool that operates on a page-wide basis would require consideration of whether any of the posts involved government speech.

“A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability,” the court warned.

The court sent the Lindke case and a similar challenge in O’Connor-Ratcliff v. Garnier back to the lower courts for further proceedings consistent with this new test. The O’Connor-Ratcliff case centered on two California school board trustees who blocked parents on personal social media accounts that were used for both personal and board-related information.

The Ninth U.S. Circuit Court of Appeals determined the agency could be liable for the trustees’ conduct, finding a close nexus between their use of social media and their official positions. The Supreme Court found that the Ninth Circuit’s approach was different from the one described in Lindke and remanded the case.

The International Municipal Lawyers Association (IMLA) filed amicus briefs in both cases arguing that with the increasing dependence on social media, it was imperative to provide local government with a clear, workable standard. Cal Cities is a member of IMLA, participating in advocacy on a national level.