The recent opinion signed by Justice Amy Coney Barrett has set a new test to determine when a public official can be considered engaged in state action by blocking someone from their social media account. The test is based on two main criteria: the official must possess actual authority to speak on the state’s behalf on a particular matter and must have exercised that authority when speaking on social media.

The Supreme Court issued a unanimous decision in the case of Lindke v. Freed, which revolved around Port Huron, Michigan city manager James Freed. Freed was accused of violating the First Amendment by blocking and deleting comments on his Facebook page from resident Kevin Lindke, who criticized Freed’s pandemic policies. This decision creates a new way to assess if an official can be held accountable for infringing on a citizen’s First Amendment rights through actions on social media.

Importance of Distinction

It is emphasized that simply owning a social media page as a public official is not enough to attribute their actions to state action. Justice Barrett pointed out that the differentiation between private conduct and state action is based on substance, not labels. Private parties can act with state authority, and state officials have private lives and constitutional rights, including the freedom of speech. One way to determine the nature of the activity on a social media page is through clear disclaimers.

Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University, commended the Court for recognizing that public officials cannot shield themselves from First Amendment liability by using personal accounts for official purposes. However, she expressed disappointment in the Court not adopting a more balanced test that considers both the free speech interests of public officials and those engaging with them on social media.

The Knight Institute, known for challenging former President Donald Trump’s blocking of users on his @realDonaldTrump Twitter account, views this new ruling as a significant development. The decision could provide a safe harbor for public officials who clearly label their social media accounts as personal, thus avoiding potential legal ramifications. Moving forward, it will be crucial for courts to safeguard speech and dissent in digital public forums.

The Supreme Court’s establishment of a new test to determine state action on social media by public officials marks a pivotal moment in understanding the boundaries of free speech and government responsibility in the digital age. While the test sets a precedent, its application and interpretation by lower courts will play a key role in balancing the rights of public officials and individuals engaging with them on social media platforms.


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