Two cases released by SCOTUS may be the handwriting on the wall regarding others dealing with social media platforms and their usage now before the Court. All should consider whether when they post on social-media platforms it is in any way associated with a governmental entity or one that is supported by government funds.

The first case, a unanimous opinion written by Justice Barrett for the Court, will have an impact on people who want others to comment on their Facebook page and those who comment.

In Lindke v. Freed, James Freed created a Facebook page which he converted to a “public” page that anyone could see and comment on his posts. He later indicated on the page that he held the position of city manager in Port Huron, Michigan posted about his position and asked others to comment on what he said. The Court said:

Freed continued to operate his Facebook page himself and continued to post prolifically (and primarily) about his personal life. Freed also posted information related to his job, such as highlighting communications from other city officials and soliciting feedback from the public on issues of concern. Freed often responded to comments on his posts, including those left by city residents with inquiries about community matters. He occasionally deleted comments that he considered “derogatory” or “stupid.”

Kevin Lindke started posting on the page and expressing his displeasure with the city’s handling of the pandemic. As a result, Freed at first deleted his comments and eventuallyblocked him. Lindke sued for a violation of his right to free speech under the federal Civil Rights law. Who would have thought the civil rights law would be used in connection with a person’s “right” to comment on an electronic platform? What might be the results regarding other platforms on which comments or items like videos are posted?

Justice Barrett writing for the Court stated:

When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State 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 detailed the posts by Freed to show that he spoke frequently about his job and the duties in which he engaged and the fact he invited comments about them. When the pandemic occurred Lindke began commenting on Freed’s activities which he deemed to be the opposite of what was expected of others whose activities were limited.

Justice Barrett then states regarding the federal law on civil rights, section 1983:

Section 1983 provides a cause of action against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State” deprives someone of a federal constitutional or statutory right. (Emphasis added.) As its text makes clear, this provision protects against acts attributable to a State, not those of a private person. This limit tracks that of the Fourteenth Amendment, which obligates States to honor the constitutional rights that §1983 protects. §1 (“No State shall . . . nor shall any State deprive . . . ” (emphasis added)); see also Lugar, 457 U. S., at 929 (“[T]he statutory requirement of action ‘under color of state law’ and the ‘state action’ requirement of the Fourteenth Amendment are identical”). The need for governmental action is also explicit in the Free Speech Clause, the guarantee that Lindke invokes in this case. Amdt. 1 (“Congress shall make no law . . . abridging the freedom of speech . . . ” (emphasis added)); see also Manhattan Community Access Corp. v. Halleck, 587 U. S. 802, 808 (2019) (“[T]he Free Speech Clause prohibits only governmental abridgment of speech,” not “private abridgment of speech”). In short, the state-action requirement is both well established and reinforced by multiple sources.

You might be surprised to know, as the Court stated:

There are approximately 20 million state and local government employees across the Nation, with an extraordinarily wide range of job descriptions—from Governors, mayors, and police chiefs to teachers, healthcare professionals, and transportation workers. Many use social media for personal communication, official communication, or both—and the line between the two is often blurred. Moreover, social media involves a variety of different and rapidly changing platforms, each with distinct features for speaking, viewing, and removing speech.

An important footnote in the opinion stated:

1 Because local governments are subdivisions of the State, actions taken under color of a local government’s law, custom, or usage count as “state” action for purposes of §1983. See Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 690–691 (1978). And when a state or municipal employee violates a federal right while acting “under color of law,” he can be sued in an individual capacity, as Freed was here.

The Court discussed the difficulty of determining whether Freed was acting as a public official and therefore subject to the provisions of the law or as a private citizen when posting and receiving comments on the Facebook page. Justice Barrett indicated there is a two-prong test:

The first prong of this test is grounded in the bedrock requirement that “the conduct allegedly causing the deprivation of a federal right be fairly attributable to the State.” Lugar, 457 U. S., at 937 (emphasis added). 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.

The Court then engages in comparative situations that give rise to the issue of whether a person is speaking with his or her governmental authority or not such as:

Consider a hypothetical from the offline world. A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor. While the substance of the announcement is the same, the context—an official meeting versus a private event—differs. He invoked his official authority only when he acted as school board president. The context of Freed’s speech is hazier than that of the hypothetical school board president. Had Freed’s account carried a label (e.g., “this is the personal page of James R. Freed”) or a disclaimer (e.g., “the views expressed are strictly my own”), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal. Markers like these give speech the benefit of clear context: Just as we can safely presume that speech at a backyard barbeque is personal, we can safely presume that speech on a “personal” page is personal (absent significant evidence indicating that a post is official). Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision (e.g., a “City of Port Huron” Facebook page) or is passed down to whomever occupies a particular office (e.g., an “@PHuronCityMgr” Instagram account). Freed’s page, however, was not designated either “personal” or “official,” raising the prospect that it was “mixed use”—a place where he made some posts in his personal capacity and others in his capacity as city manager.

What becomes difficult in this electronic age is outlined by the opinon where it is stated:

One last point: The nature of the technology matters to the state-action analysis. Freed performed two actions to which Lindke objected: He deleted Lindke’s comments and blocked him from commenting again. So far as deletion goes, the only relevant posts are those from which Lindke’s comments were removed. Blocking, however, is a different story. Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.3 A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.

So the Court states:

The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.

So, the lower court must apply the test and reasoning of SCOTUS to the case at that level of court proceedings and re-determine whether their holding would be the same or change.

In the second case, because of the result in Lindke v. Freed, SCOTUS decided in O’Connor-Ratcliff v. Garnier, to send the case back to the lower court for reconsideration.

The Court in a per curium opinion, described the case this way:

In 2014, Michelle O’Connor-Ratcliff and T. J. Zane created public Facebook pages to promote their campaigns for election to the Poway Unified School District (PUSD) Board of Trustees. While O’Connor-Ratcliff and Zane (whom we will call the Trustees) both had personal Facebook pages that they shared with friends and family, they used their public pages for campaigning and issues related to PUSD. After they won election, the Trustees  continued to use their public pages to post PUSD-related content, including board-meeting recaps, application solicitations for board, local budget plans and surveys, and public safety updates. They also used their pages to solicit feedback and communicate with constituents. Their Facebook pages described them as “Government Official[s]” and noted their official positions. O’Connor-Ratcliff also created a public Twitter page, which she used in much the same way.

As happened in the Freed case, criticisms were posted on the page by:

Christopher and Kimberly Garnier, who have children attending PUSD schools, often criticized the board of trustees. They began posting lengthy and repetitive comments on the Trustees’ social-media posts—for instance, nearly identical comments on 42 separate posts on O’Connor-Ratcliff ’s Facebook page and 226 identical replies within a 10-minute span to every tweet on her Twitter feed. The Trustees initially deleted the Garniers’ comments before blocking them from commenting altogether.

SCOTUS quoted the lower court finding in this way:

… It held that §1983’s state-action requirement was satisfied because there was a “close nexus between the Trustees’ use of their social media pages and their official positions.” 41 F. 4th 1158, 1170 (2022). The court cited its own state-action precedent, which holds that an off-duty state employee acts under color of law if she (1) “purports to or pretends to act under color of law”; (2) her “pretense of acting in the performance of [her] duties had the purpose and effect of influencing the behavior of others”; and (3) the “harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental status or to the performance of [her] duties.” Ibid. (citing Naffe v. Frey, 789 F. 3d 1030, 1037 (CA9 2015); internal quotation marks and alterations omitted). Applying that framework, the court found state action based largely on the official “appearance and content” of the Trustees’ pages. 41 F. 4th, at 1171.

SCOTUS then stated:

We granted certiorari in this case and in Lindke v. Freed,___ U. S. ___ (2024), to resolve a  Circuit split about how to identify state action in the context of public officials using social media. 598 U. S. ___ (2023). Because the approach that the Ninth Circuit applied is different from the one we have elaborated in Lindke, we vacate the judgment below and remand the case to the Ninth Circuit for further proceedings consistent with our opinion in that case.

SCOTUS will often do this when cases are similar. It will decide one of the cases with the lengthy reasoning as it did in the Freed case and send the other case back for the lower court to apply what has been outlined for “further proceedings consistent with our opinion in that case.” It is then up to the lower court to decide, based on the presentations in that court, how to apply the reasoning to the facts of that case. Hopefully, the lower court and the parties involved are able to decide the parameters of that reasoning. If one of the parties then disagrees with the decision that is then made it may be appealed again to SCOTUS and it must decide whether to hear the case under the different application of the facts to the law.

And you wondered why sometimes it becomes confusing?

Don

To read the Freed case go to:

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