SCOTUS sets "authority" test for judging public officials' actions on social media

Justice Amy Coney Barrett announced the opinion for the unanimous court.

The U.S. Supreme Court made clear on Friday that government officials’ statements on personal social media accounts can constitute state action, a determination that then means those officials could face First Amendment and other constitutional challenges for deleting other users’ comments or blocking them.

“An official cannot insulate government business from scrutiny by conducting it on a personal page,” Justice Amy Coney Barrett wrote for the unanimous court in Lindke v. Freed, “highlight[ing] the cost of using a ‘mixed use’ social-media account” that includes both personal and government-related content.

Barrett’s opinion for the court set forth a two-step test for deciding when such statements constitute state action that had been previewed at oral arguments in her questions to Pam Karlan, who was representing a couple blocked from school board trustees’ pages in California.

Under the court’s rule, a person challenging the government official’s actions on a personal social media page must show the official “(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.”

The issue was originally expected to have been addressed a few years ago in a case over Donald Trump’s practice of blocking people on Twitter — but the court dodged that case when Trump lost re-election and left office.

It was better for the law, it appeared, for the court to have decided the question under the far more common circumstances at issue in the cases decided on Friday: a Michigan town manager (Lindke) and the California school district trustees (O’Connor-Ratcliff v. Garnier).

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Following Friday’s ruling, a challenge relating to an official’s actions on a personal page will not get to the second step if the official lacks what amount to three distinct elements of the first step that build on one another — “actual authority” / “to speak on behalf of the State” / “on a particular matter.”

All three of these elements could be outcome-determinative in any given case. A government official could constantly talk about government business, but lack any authority. Case dismissed. A government official might have authority in an area, but no authority to speak for the state as a part of their job. Case dismissed. And, finally, an official might have authority to speak in some areas but the statement in question is in some other area. Case dismissed.

That is not to say it’s a particularly tough standard; it’s just to highlight the individual pieces of the first step.

If the official whose post or posts are at issue meets that “threshold showing of authority,” as Barrett put it for the court, a challenge relating to their action can move to step two: Are they purporting to exercise their authority?

Regarding this part of the test, Barrett explained the protection for the free speech rights of government employees and officials that the court was balancing against the public’s right to engage with the government: “If the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice” — and retains a right to do so.

In general, Barrett explained, this second step could be pretty clear — with pages labeled personal or government. (Even there, though, she noted that labeling a page “personal” only creates a “a heavy (though not irrebuttable) presumption” that it is personal.) But, the “mixed-use” pages like those at issue in Friday’s cases are where the questions are going to come up most often. At that point, she wrote for the court, it is “a fact-specific undertaking in which the post’s content and function are the most important considerations.”

Within that area, the post’s “content and function might make the plaintiff ’s argument a slam dunk,” Barrett wrote, citing a hypothetical mayor’s statement posted only on their personal Facebook page that stated, “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.”

Of course, it won’t always be so clear. Because “many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public,” Barrett continued, “it may not be easy to discern a boundary between their public and private lives.” In those cases, though, it remains “crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.”

In concluding, the court also noted how the test applies differently to different actions on social media. While deleting a comment would only lead a court to look at the post in question, for example, Barrett noted that the “bluntness of Facebook’s blocking tool” would mean that a public official who blocks a person to keep them from commenting on their personal posts “risk[] liability for also preventing comments on his official posts.”

In short, if you are a government employee or public official and have the authority to speak for your employer or office, your statements on your personal social media could be considered state action if made within your area of authority and made in apparent exercise of that authority.

Because the test announced by the court was not precisely what either lower court had employed in the pair of challenges before the justices, both cases were sent back to the appeals courts to apply Friday’s test.