One of the downsides of the legal system is that the final say on how laws apply to new technologies tend to fall on a group of older lawyers. In other words, most of the votes are in the hands of people who are not on the cutting edge of technology. This year, there will be several cases before the Supreme Court involving social media. To put things in perspective, the four youngest justices essentially went to law school either while I was going to law school or right after I went to law school. At the time that I was in law school, most students did not have e-mail accounts, and we were using very early versions of Word and WordPerfect as our software for writing papers and exams. Needless to say, sites like Facebook and X were not part of our law school and college experiences.
This past week, we got the first of the social media cases for the year — actually two separate cases raising the same issue — whether a public official can block individuals from commenting on the official’s social media webpages. When faced with novel issues, judges tend to try to fall back on existing legal doctrines even if that means forcing round pegs into square holes. And to a some extent that is what we got in the lead case — Lindke vs. Freed in an actual unanimous opinoin written by Justice Barrett.
The basic facts of this case is that the webpage in question was the personal account of the public official. The official had this account before running for and winning his current position. However, he does not his public position on the account similar to how many people not their employment. And he does use his webpage to mention what is going on with that position. The people on the other side of this case took advantage of the comment feature of the webpage to critique what the city government was doing. The public official deleted some comments that he thought were inappropriate or inaccurate before eventually blocking these individuals from commenting. The people who were blocked brought a case claiming that, by blocking them, this official was violating their First Amendment rights.
The key focus of the opinion was on the concept of state action. The U.S. Constitution (except for the Thirteenth Amendment) restricts the actions of governments, not the actions of private individuals. As such, a necessary element of a constitutional claim is to show either a governmental action (or at the very least that the person is acting “under color of law” — i.e. with some governmental authorization). To put it in other terms, if a police officer on vacation goes into a bar and starts beating people up, you have a suit against that officer in his personal capacity for assault and battery. On the other hand, if that officer beats up a suspect in the interrogation room, you have a civil rights complaint because he is acting in his capacity as a police officer.
As such, the way that the Supreme Court frames the issue (both for this case and for future cases) is whether the official is posting in his official capacity on behalf of the government (the functional equivalent of an electronic town hall) or is she posting in a private capacity (no different than having a conversation with friends over beer about what you are doing). So the U.S. Supreme Court sees the issue as posing two questions. First, is the public official authorized by the government to speak on a particular issue on behalf of the government? Second, is the public official acting on that authority in making posts on a particular account? But these two basic questions are something that most of the lower courts agreed about. The real difficult issue for lower courts was how to decipher accounts to determine the answer to those two questions.
And, not too surprisingly, the Supreme Court opts against providing any substantial clarity with a preference for a fact- and content-specific analysis. As an initial point, the Supreme Court notes that public employees have a First Amendment right to speak on matters of public concern (with limited exceptions when government can restrict such speech). As such, the fact that a public employee comments about public issues on their personal accounts does not turn those personal accounts into governmental accounts.
On the first issue, the Supreme Court emphasizes that there must be some source of authority granting the public official the power to speak on behalf of the government. That means looking at the official’s position and its duties. In this case, the public official was a city manager, and, as such, there are a significant number of times when he is authorized to speak on behalf of the city.
But that still requires looking at the second issue. Taking our city manager as the example, he may be authorized to speak on certain topics on behalf of the city. But that does not mean that every time that he speaks, he is acting as city manager on behalf of the city. For example, when a mayor goes to her favorite local restaurant for dinner, she is not pronouncing that the city wants everyone to eat chicken for dinner that evening. In the “real world,” context tends to indicate whether a person is speaking in an official capacity. As the opinion notes, our hypothetical public official may make an official announcement at a press conference about the city undertaking a certain action which is clearly the public official exercising his official authority. But later that weekend, he may be hanging out with friends watching the football game. When he talks to them about what the city is doing, he is clearly not exercising his official authority. While the Supreme Court suggests that it would be nice if public officials would clearly separate their personal accounts from their business accounts, the tougher question is when public officials do not maintains such sharp and neat divisions.
And here we get a nice cautionary note from the court. Depending on the website, users have two types of actions. First, they can delete specific comments on specific posts. If a specific post is not a “state action,” there is no First Amendment violation. So, if John Police Chief deletes a comment wanting to criticize him for not having enough homicide detectives from a post on his personal account about his favorite Christmas growing up, because the post was not state action, there is no First Amendment issue. On the other hand, it would potentially be state action, if the post was announcing that they were transferring a detective slot from homicide to robbery. Second, for many websites, the account owners can simply block a user from commenting on any posts. And here is where account owners have a big risk. If the account owner uses the account in both a personal and official capacity, blocking a hostile constituent may be state action as keeping the constituent from commenting on an official post would potentially infringe on the constituent’s rights.
The bottom line for this opinion is that we are living in an era in which technological changes do not neatly fit within existing legal categories. As courts try to place new ways of doing things in the old model, it is going to be easy for public officials to stumble into liability if they are not careful. But, when and whether there is liability is going to be a case-by-case question.
