Supreme Court Decides Lindke v. Freed

On March 15, 2024, the U.S. Supreme Court decided Lindke v. Freed, No. 22-611, holding that a public official who prevents someone from commenting on the official’s social media page engages in state action under 42 U.S.C. § 1983 if the official both (1) possessed actual authority to speak on the state’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social media posts.

This case involves to what extent a public official can block viewers from a page that contains both public and private posts. In 2014, James Freed was appointed city manager for Port Huron, Michigan, and updated his Facebook page to reflect his new role. He posted a variety of personal updates, as well as 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, a Port Huron resident, did not approve of Freed’s handling of the pandemic and left critical comments on Freed’s Facebook page, which led Freed to block him. 

Lindke then sued Freed under 42 U.S.C. § 1983, alleging that Freed had violated his First Amendment rights by restricting his ability to comment on Freed’s Facebook page, which he characterized as a public forum. The Sixth Circuit applied its “duty and authority” test — which differs from the approach taken by the Second and Ninth Circuits — and affirmed the district court’s grant of summary judgment for Freed, reasoning that Freed was not acting “under color of” law for purposes of 42 U.S.C. § 1983 because he did not operate the page pursuant to his official duties.

The Supreme Court vacated and remanded in a unanimous decision. Writing for the Court, Justice Barrett explained that Freed’s status as a state employee was not determinative, and “[t]he distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.” Put another way, there are circumstances when government officials can permissibly block a constituent from their social media pages, provided they are not claiming to speak on the state’s behalf and are not speaking on an area within their official authority. The Supreme Court cautioned that the evaluation of such situations was fact-intensive, and that “look and function” are not enough. Instead, the Supreme Court instructed lower courts to consider whether the official has authority to speak on the government’s behalf (step 1) and if the official purported to use that authority in writing a post (step 2). Further, “[t]he appearance and function of the social media account are relevant at the second step, but they cannot make up for a lack of state authority at the first.” If those two steps are satisfied, an official cannot block a person, even if the blocking was done to prevent someone from commenting on the personal posts on the page. Because the Sixth Circuit relied on a standard different than the one adopted by the Court, it will need to consider whether Lindke is liable using the Supreme Court’s test.

In a per curiam opinion, the justices also resolved a similar case, Garnier v. O’Connor-Ratcliff, No. 22-324, which involved two California school board members who blocked parents on social media. The Court vacated the Ninth Circuit’s ruling that the school board members were acting “under color of state law” and sent the case back “for further proceedings consistent with our opinion” in Lindke. Download the Opinion for Garnier v. O’Connor-Ratcliff.

Justice Barrett delivered the unanimous Opinion of the Court.