Today’s blog entry does not have anything to do with people with disabilities per se. However, people with disabilities like anybody else do have the right to express their support or displeasure with public officials. That of course leads to two questions. First, what happens if the website where they can post comments is not accessible to them? We are not covering that point today. The second question is what happens if the public official blocks a person from commenting or deletes certain comments of an individual. It is the second question that was the subject of the Supreme Court decision in Lindke v. Freed, here. As usual, the blog entry is divided into categories and they are: facts; court’s approach to determining when a public official engages in impermissible viewpoint discrimination when using an Internet vehicle for both private and professional purposes: overview; court’s approach to determining when a public official engages in impermissible viewpoint discrimination when using an Internet vehicle for both private and professional purposes: actual authority; court’s approach to determining when a public official engages in impermissible viewpoint discrimination when using an Internet vehicle for both private and professional purposes: using state authority; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Sometime before 2008, Freed created a private Facebook profile that he shared only with “friends.” When he began nearing the platform’s 5,000 friend limit, he converted his profile to a public page, which means that anyone could see and comment on his posts. He also chose public figure for his page’s category. In 2014, he was appointed City Manager of Port Huron, Michigan and updated his Facebook page to reflect the new job. He even included a photo of himself in a suit with the city’s lapel pin affixed for his profile picture. He also added a title, a link to the city’s website, and the city’s general email address. He described himself in both personal and professional terms on his page. On his page, he continued to post both public related information as well as private information. He also often replied to comments, including answering inquiries from city residents. When the pandemic hit, one of the commenters, Lindke, continually expressed frustration with the way the city was handling the pandemic. Initially, Freed deleted posts and then ultimately blocked him altogether. Once blocked, Lindke could see Freed’s posts but could no longer comment on them.

 

Lindke sued for violations of §1983 claiming that Freed engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them. Not all of the Circuits take the same approach in this situation, so the Supreme Court stepped in to resolve the issue.

 

II

 

Court’s Approach to Determining When a Public Official Engages in Impermissible Viewpoint Discrimination When Using an Internet Vehicle for Both Private and Professional Purposes: Overview

 

  1. Public officials can act on behalf of the State but also have their own constitutional rights as private citizens.
  2. A person does not relinquish his First Amendment rights simply by becoming an officeholder.
  3. A public official’s social media activity conflates to state action under §1983 only if the official: 1) possesses actual authority to speak on the State’s behalf; and 2) purports to exercise that authority when he spoke on social media. They are independent requirements and should not be conflated.

 

III

Court’s Approach to Determining When a Public Official Engages in Impermissible Viewpoint Discrimination When Using an Internet Vehicle for Both Private and Professional Purposes: Actual Authority

 

  1. An action is not attributable to a State unless it is traceable to the State’s power or authority.
  2. The presence of state authority must be real and not a mirage. So, the question is whether Freed was possessed of state authority to post city updates and register citizen concerns.
  3. The censorship must be connected to speech within Freed’s bailiwick.
  4. For state action to exist, the State must be responsible for the specific conduct of what the plaintiff complains. That is, there must be a tie between the official’s authority and the gravamen of the plaintiff’s complaint.
  5. In trying to figure out what authority exists, potential sources include: statutes; ordinances; regulations; custom; or usage.
  6. Statutes, ordinances, regulations refer to written law through which a State authorizes an official to speak on its behalf.
  7. Custom and usage refers to persistent practices of state officials that are so permanent and well-settled that they carry the force of law.
  8. A court cannot short-circuit First Amendment rights by relying on excessively broad job descriptions to conclude that a government employee is authorized to speak for the State. That is, the inquiry is not whether making official announcements could fit within the job description; it is whether making official announcement is actually part of the job that the State entrusted the official to do.

 

IV

Court’s Approach to Determining When a Public Official Engages in Impermissible Viewpoint Discrimination When Using an Internet Vehicle for Both Private and Professional Purposes: Using State Authority

 

  1. Generally, a public employee purports to speak on behalf of the State while speaking in his official capacity or when using his speech to fulfill his responsibilities pursuant to state law.
  2. Freed’s Facebook account did not carry any label or a disclaimer saying that the views expressed on the page are strictly his own. If he did, he would be entitled to a strong but not irrebuttable presumption that all the posts on his page were personal.
  3. Context can make clear that a social media account purports to speak for the government. For example, when an account belonged to a political subdivision or is passed down to whomever occupies a particular office.
  4. Categorizing posts that appear on a page that is both personal and simultaneously one for a public official is a fact specific undertaking in which the post’s content and function are the most important considerations.
  5. In a footnote, the Court says that an official cannot insulate government business from scrutiny by conducting it on a personal page.
  6. It is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.
  7. An official using government staff to make a post will be hard pressed to deny that he was conducting government business.
  8. Deleting and blocking a user are two very different things. With respect to deleting posts, the only relevant posts are those from which the plaintiff’s comments were removed. However, blocking operates on a page wide basis, so a court must consider then Freed’s actions with respect to any post on which Lindke wished to comment upon.
  9. The bluntness of Facebook’s blocking tool, which is similar to many on the Internet, highlights the costs of using a mixed use social media account. When page wide blocking is involved, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. So, a public official failing to keep personal posts in a clearly designated personal account thereby exposes himself to greater potential liability, especially when it comes to blocking others from commenting.

 

V

Thoughts/Takeaways

 

  1. The moral of the story is you are an officeholder of some kind or work for a governmental entity and have responsibility with respect to the Internet site or with broadcasting what is going on in the governmental entity in some way and also have a private page (Facebook or Instagram for example), keep the accounts separate.
  2. Unanimous opinion by Justice Barrett.
  3. If a person working for a governmental entity is commenting on their site used for private purposes, have a disclaimer in there saying that the opinions are their own and not their employer’s.
  4. Mixed use accounts by those working for governmental entities will result in a very fact specific analysis to the point where plaintiffs would probably survive a summary judgment motion. So, if at all possible, stay away from pages that are mixed use.
  5. The test offered by the Court is not necessarily easy to understand. What helps me in thinking about it is the Court’s statement that there has to be a tie between the official’s authority and the gravamen of the plaintiff’s complaint. Also, the Court’s statement as to where that authority comes from is helpful. That is, you look to statutes, ordinances, and regulations as well as to custom and usage.
  6. With respect to determining whether the authority exists at all, getting caught up in job descriptions is a recipe for disaster.
  7. With respect to using the authority, markers to look to include: 1) labels and disclaimers; 2) who is hosting the page; 3) the specific act involved; 4) whether information is being repeated or whether the person is sharing otherwise available information; 5) whether government staff is used to make a post; and 6) the nature of the technology involved, such as blocking v. deleting. From reading the opinion, the list is clearly not exclusive. It is also very fact specific, all of which adds complexity to any litigation as well as expense.
  8. You can expect lots of future litigation on both sides of the test laid out by the Supreme Court, but especially when it comes to whether the authority was actually being used as it is so fact specific.
  9. Nothing wrong with an employee of a governmental entity or an office holder engaging in private speech related to his public employment or concerning information learned during that employment. For example, repeating or sharing otherwise available information falls into this category.
  10. Whether the authority exists to my mind, is a much more straightforward analysis than whether the authority is actually being used. If I am the lawyer for a governmental entity, it might make a great deal of sense to put out a bulletin to all the employees, including any officeholders, that their personal page should contain a disclaimer saying that anything that appears on that page is their view and not of their employer.
William Goren

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during…

William D. Goren is one of the country’s foremost authorities on the American with Disabilities Act (ADA) and the Rehabilitation Act of 1973. For 28 years and continuing, he has been advising on ADA compliance as both an attorney and professor—of which during his time as a full-time academic at various institutions in Chicago, he won numerous teaching awards and achieved tenure.