HR REPORT: Official Speech or Personal Speech? U.S. Supreme Court Provides Clarity on Public Official’s Use of Social Media

Published in the May/June 2024 Edition of New Hampshire Town and City

Municipal employees have free speech rights just like every other American citizen. But unlike every other American citizen, many municipal employees also have the authority, under certain circumstances, to speak in an official capacity on behalf of the town or city they represent. When a municipal official posts about job-related topics on social media, it is often difficult to tell whether the speech is official or private. While the employee’s official speech is within the employing municipality’s control, the employee’s personal speech often is not. This issue, and particularly how to distinguish the differing types of speech, frequently vexes supervisors and human resources managers tasked with implementing social media and other personnel policies.

The United States Supreme Court recently grappled with this issue in the case of Lindke v. Freed. In a rare unanimous opinion, the Court provided crucial guidance to local governments tasked with finding the line between official speech and personal speech and managing the former.

By way of background, the First Amendment to the United States Constitution prohibits state and local government from “abridging the freedom of speech.” The Supreme Court has interpreted the First Amendment to limit the government’s authority to regulate certain protected categories of speech, while allowing greater leeway in regulating other categories of unprotected speech.

If an individual feels that their right to engage in constitutional free speech has been violated, they can sue municipal officials under Section 1983 of the Civil Rights Act of 1964. Under longstanding Supreme Court precedent, municipal officials are liable under Section 1983 when they engage in “state action” in such a way that deprives an individual of their right to free speech. State action includes statements made by a public official in their official capacity. Contrast this was the same public official engaging in private speech on personal matters, which does not rise to the level of state action.

In Linke v. Freed, the defendant, James Freed, was the city manager of Port Huron, Michigan. Mr. Freed created and maintained a private Facebook profile and was an avid user of the platform. Prior to assuming his role as city manager, Mr. Freed converted his Facebook profile to a public “page” and categorized his page as that of a “public figure.” When Mr. Freed became city manager, he updated his Facebook page to reflect his new job title and included a link to his city email address and a general link to the city’s website. He continued to actively use his Facebook page, posting primarily about his personal life, but also posting information related to his job. He posted information about city projects, highlighted communications from other city officials, and occasionally solicited feedback from the public on matters of city business.

Mr. Freed’s Facebook page garnered significant attention from city residents who often commented with questions about city policies and programs (for example, “Can you allow city residents to have chickens?”). Mr. Freed responded to questions and comments from city residents and on occasion would delete comments that he thought were “derogatory” or “stupid.”

During the COVID-19 pandemic, Mr. Freed’s Facebook page was frequently visited by city resident, Kevin Lindke, who was unhappy with the city’s response to the pandemic. Mr. Lindke frequently commented on Mr. Freed’s page voicing his displeasure with city policies and officials. Mr. Freed initially deleted Mr. Lindke’s comments and eventually blocked him altogether, preventing him from commenting further.

Mr. Lindke sued Mr. Freed under Section 1983, alleging that his First Amendment rights had been violated when Mr. Freed deleted his comments and blocked him on Facebook. Mr. Lindke argued that he had the right to comment on Mr. Freed’s page, which he characterized as a “public forum” and that by being blocked he was subject to impermissible viewpoint discrimination. Because only “state action” can lead to liability under Section 1983, the success of Mr. Lindke’s lawsuit depended on whether Mr. Freed was using his Facebook page in a “private” or “public” capacity.

To sort the personal from the official, the Supreme Court established a legal test by which municipal employers must weigh forms of speech by employees and appointed officials. The Court held that a public official’s social-media activity constitutes state action under Section 1983 only if the official “(1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”

In its decision, the Court stressed that “actual authority” is more than just some authority. In other words, the subject matter of the social media posts and comments at issue must be traceable to the public employee’s specific duties to fall within his authority. As to the second point in the legal test, the Court stated that the context of the speech is determinative of whether or not a public official is exercising official authority. An announcement on pandemic era restrictions made by a school board president at a school board meeting, for example, is a clear exercise of official authority, while relaying the content of the announcement to friends at a backyard barbeque is not an exercise of official authority.

As for Mr. Lindke’s case against Mr. Freed, the Court ultimately remanded the case back to the lower Courts to apply the two-factor test. The lower Courts will now be responsible for determining whether Mr. Freed’s activity on his Facebook page rose to the level of state action for purposes of Mr. Lindke’s lawsuit.

The Lindke v. Freed case serves as an important reminder to municipal human resources managers of the importance of social media policies designed to clearly delineate when an employee has actual authority to engage in official speech online and what precautions, if any, the employer requires employees to take when engaging in online personal speech (such as a disclaimer that they are speaking solely in their personal capacity). While further case law guidance will develop over time, such policies will likely be vital in subsequent cases for municipalities who are trying to demonstrate that their employees’ social media use has not created a litany of online public forums with liability for potential constitutional violations running to their employer.

This is not a legal document nor is it intended to serve as legal advice or a legal opinion. Drummond Woodsum & MacMahon, P.A. makes no representations that this is a complete or final description or procedure that would ensure legal compliance and does not intend that the reader should rely on it as such.