Yesterday, in Lindke v. Freed, the Supreme Court held 9-0 that social media accounts and posts by public officials do not ordinarily constitute public fora, even where the content of the posts concerns governmental activity. Rather, such posts create a public forum (thereby giving the public some right to access and comment on them) only when they satisfy the state-action doctrine, not when they are the speech of the official in his capacity as a private citizen. In an opinion by Justice Amy Coney Barrett, the Court held that state action is satisfied only when the posting official “(1) had actual authority to speak on behalf of the State [or locality] on a particular matter, and (2) purported to exercise that authority in the relevant posts.”

The Court stressed that both portions of the test were fact-dependent. Actual authority under the first part of the test depends on “written law or longstanding custom” giving the official the authority to speak on behalf of the government with regard to the subject of the post. Importantly, the test is not whether the subject of the post falls within the official’s job responsibilities, but whether the official has the authority to speak for the government with respect to that issue. 

Purported authority under the second part of the test is a “fact-specific undertaking in which the post’s content and function are the most important considerations.” The Court noted that posts with identical content could yield different results depending on whether the context indicated that the official was using the post “to exercise the power of his office” or to “engag[e] in private speech ’relate[d] to his public employment (emphasis added).’” 

Public officials who wish to discuss job-related matters on their personal social-media accounts would be well-advised to post disclaimers on the pages specifying that the posts are being made in their personal capacity and do not constitute official speech on behalf of the government. The Court said that such a disclaimer would create “a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Most public officials will probably wish to play it safe and not discuss governmental matters on social-media pages that they wish to remain personal, for the Court warned that officials may not block members of the public from the page if even a portion of the posts on the page constitute state action.

Overall, Lindke makes it quite difficult for members of the public to establish a First Amendment right to access, and to comment on, public officials’ personal social-media pages. Such a right will exist only in the rare case where the public official has authority to speak for the government on the topic of the post and purports to use the post to carry out that authority.

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