An interesting case about government social media was decided by the 8th Circuit Court of Appeals in January of this year. Felts v. Green. This decision came out before last month’s U.S. Supreme Court decision in Lindke v. Freed that adopted a new “test” for when a government official or employee is engaging in “state action” on their personal social media account for purposes of First Amendment challenges. It’s still worth reporting on even if it preceded the USSCT ruling because the test applied in the Felts case is pretty similar to the test adopted by the U.S. Supreme Court.

The President of the City of St. Louis Board of Alderman was sued after he blocked an individual from his Twitter account for posting criticism of his support for closing a local jail. The district court ruled against the President, finding that he used his Twitter account primarily for government business and his actions in blocking the user constituted “viewpoint discrimination.” The City then appealed.

The 8th Circuit Court of Appeals first rejected the City’s argument that the case was “moot” because (1) the President had since resigned and (2) the President had unblocked the user after she filed the lawsuit. The Court determined that a voluntary unblocking of the user did not prevent the same action from happening again and that the City could still be held liable for the former President’s actions even after his resignation. 

Next, the Court of Appeals analyzed whether the President’s blocking of the  user qualified as “state action” under the civil rights statute, applying a “policymaking authority” test. The Court determined that the President had final authority regarding communication on behalf of the City, and that his decision to block a user from Twitter was a “deliberate choice of a guiding principle and procedure to silence online critics.” The Court noted that the President had alternatives such as ignoring the Tweet or replying to the Tweet and his decision to block the user was an exercise of his final policymaking authority as President of the Board of Aldermen. As a result, the Court found the City of St. Louis liable under Section 1983 for the President’s actions in blocking the user from Twitter in violation of her First Amendment rights.

The test that the Court of Appeals applied is pretty similar to the test that the U.S. Supreme Court adopted in Lindke, and seemed to focus on the official’s “actual authority” and his exercise of that authority. This differs from the “appearance” test that the Supreme Court expressly rejected in Lindke and that the 8th Circuit seemed to rely on in an earlier case involving the social media account of a Missouri State Representative (Campbell v. Reich). That “appearance” test focuses more on the “trappings” of the account or page that is the subject of the challenge (i.e., the account is primarily used for government business, references the official’s title/position, etc.) rather than a focus on the authority of the official to communicate or take action on behalf of the government body.

It will be interesting to see how the district and courts of appeals apply the new Lindke test as they face these First Amendment challenges that are likely continue to be filed as government officials and employees increase their use of social media to communicate about government business.