Supreme Court Decision on Public Officials' Social Media — What Does it Mean for Congress?
BY MARCI HARRIS
On March 15, 2024, the Supreme Court issued its decision Lindke v. Freed, addressing the question of when a public official's actions on social media constitutes state action under 42 U.S.C. §1983 — with a focus on scenarios involving the blocking of users or deletion of comments.
Background on the Case
James Freed, the City Manager of Port Huron, Michigan, used his Facebook page, initially created as a private profile and later converted to a public figure page, for both personal musings and official communications. This hybrid use of social media led to a legal challenge when Kevin Lindke, a local resident, was blocked from commenting on Freed’s posts after expressing criticism of the city’s COVID-19 response. Lindke sued Freed under 42 U.S.C. §1983, arguing that Freed's actions violated his First Amendment rights, claiming the page functioned as a public forum given its use for official matters. The case escalated to the Supreme Court, which had to determine whether Freed's actions on his mixed-use Facebook page constituted state action, thereby implicating First Amendment protections.
In a unanimous decision, the Court established a two-part test to determine whether a public official’s social media activity is considered state action. The Court focused on the dual necessity of the official's actual authority to speak on behalf of the state and the exercise of this authority in the specific context of the social media interaction.
The Court unanimously held that a public official's conduct on social media is considered state action only if:
the official both has the actual authority to speak for the state on the matter, and
is exercising that authority in the social media interaction in question.
So what does this decision mean for Members of Congress?
The Court did not directly address the case of Members of Congress or legislators at any level of government — whether school boards, city councils or state assemblies — instead describing a variety of “state employees” (“There are approximately 20 million state and local government employees across the Nation, with an extraordinarily wide range of job descriptions—from Governors, mayors, and police chiefs to teachers, healthcare professionals, and transportation workers.”)
The decision is already being cited by some, however, to question Members of Congress’ ability to block people on social media. Here’s The Intercept’s Ryan Grim asserting that Rep. Ritchie Torres’ blocking him on his personal X (formerly Twitter) account is now not allowed following the Lindke decision.
Is Grim correct? Does Lindke prevent a Member of Congress from blocking a journalist from his campaign or personal social media account? As anyone who has made it through the first year of law school knows, the answer is always “it depends.” But we can use Lindke’s new two-part test to analyze what a court would likely find.
Does the official have the actual authority to speak for the state on the matter?
Is he or she exercising that authority in the social media interaction in question?
First, the facts of this particular situation:
Rep. Torres is a Member of Congress. The account in question is a personal account, where he recently updated the bio to clarify that it is “A personal account in which I speak for myself rather than for the federal government. For official announcements, please follow @RepRitchie.”
The Lindke decision not only describes ways in which public official’s actions on personal accounts could be deemed state action, but also clarifies that public officials do not lose their own First Amendment rights when they become public employees:
“The question is difficult, especially in a case involving a state or local official who routinely interacts with the public. Such officials may look like they are always on the clock, making it tempting to characterize every encounter as part of the job. But the state-action doctrine avoids such broad-brush assumptions—for good reason. While public officials can act on behalf of the State, they are also private citizens with their own constitutional rights. By excluding from liability ‘acts of officers in the ambit of their personal pursuits,’ (Screws v. United States, 325 U. S. 91, 111 (1945) (plurality opinion)), the state-action requirement ‘protects a robust sphere of individual liberty’ for those who serve as public officials or employees’” (Halleck, 587 U. S., at 808).
“‘The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern. (Garcetti v. Ceballos, 547 U. S. 410, 417 (2006)). This right includes the ability to speak about ‘information related to or learned through public employment,’ so long as the speech is not ‘itself ordinarily within the scope of [the] employee’s duties.’ (Lane v. Franks, 573 U. S. 228, 236, 240 (2014)).”
“Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own. …. The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.” (Lindke v. Freed, No. 22–611, 7–8 (2024)).
Grim is a journalist. This might affect the First Amendment analysis more so than say, a non-constituent. While the Lindke decision provides a framework for analyzing state action on social media platforms, other cases have addressed the broader issue of journalists' rights to access government information. For instance, in New York Times Co. v. Sullivan (establishing high bar for public officials to prove defamation), the Supreme Court affirmed the crucial role of the press in scrutinizing public officials and holding them accountable. Similarly, cases such as Detroit Free Press v. Ashcroft (ruling in favor of press's access to government records) underscore the importance of transparency and access to government records. Given these fundamental principles Grim, as a journalist seeking to engage with a public official in his capacity as a watchdog of government affairs could be found to have standing to challenge any restrictions placed on his ability to access and interact with elected representatives on social media platforms. But again, it depends. And nota bene that the Freedom of Information Act, which was at issue in Ashcroft, does not apply to Congress.
Rep. Torres regularly uses the account to post about topics related to his work as a Member of Congress, including his position on votes he has taken — like the post screenshot below addressing his vote for the TikTok divestment bill. He also posts personal content (reposting Happy Birthday wishes) but the significant majority of the content is related to votes he has taken, bills he has introduced, or other business before Congress.
So now to the Lindke test:
1. Does Rep. Torres have the actual authority to “speak for the state” on the matter?
If Grim were making the case that Lindke should apply, he might argue that as a Member of Congress, Torres is empowered in certain cases to “speak for the state” through updates to constituents that he is privy to by virtue of his position as a congressman. He might also argue that Torres’ ability to take other actions, such as sending a letter on official letterhead, questioning witnesses in a hearing, or voting on legislation indicate that he does in fact “speak for the state.”
In Knight First Amendment Institute v. Trump (decided July 9, 2019), the Second Circuit Court of Appeals held that posts created through President Trump’s personal Twitter account (@RealDonaldTrump) established a “public forum,” in which speech protected by the First Amendment (like political speech) could not be curtailed by the government (through the president or his staff “blocking” people holding viewpoints with which they disagreed). However, as the President and Commander-in-Chief, Trump possessed the authority to announce actions that he alone could take — authority that a Member of Congress does not posess.
[T]he Account is one of the White House’s main vehicles for conducting official business… The President and his aides have 18 characterized tweets from the Account as official statements of the President. For example, the President used the Account to announce the nomination of Christopher Wray as FBI director and to announce the administration’s ban on transgender individuals serving in the military. The President used the Account to first announce that he had fired Chief of Staff Reince Priebus and replaced him with General John Kelly. President Trump also used the Account to inform the public about his discussions with the South Korean president concerning North Korea’s nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea. Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F. 3d 226, 236 (CA2 2019)
The Second Circuit in Knight Institute found that tweets by the @RealDonaldTrump Twitter account, though technically the “personal” account of President Trump, created a “public forum” because of several factors:
The account listed the then-President’s government position in the bio
Tweets from @realDonaldTrump “are official records that must be preserved under the Presidential Records Act.”
The subject has the authority to make policy unilaterally and has used the account to do so
The account was accessed and maintained by staff during official government activity.
Arguably, these factors would not be met in the case of a Member of Congress that takes care to clarify the personal or campaign nature of an account in the bio and does not enlist official staff to maintain the account. Congressional communications are (official, campaign, or personal) are not subject to records preservation statutes, including FOIA. Members of Congress cannot take unilateral action (such as firing or appointing a cabinet member or imposing trade sanctions). At most, a member of Congress could announce a bill that he or she has or will introduce, or how he or she intends to vote on a pending legislative proposal.
2. Is Rep. Torres exercising that authority in the social media interaction in question?
If Grim were found to have standing on the First Amendment challenge and made it past part 1 of the Lindke test, the question would then turn to whether “the social media interaction in question” (blocking Grim on X) was an exercise of the authority found in part 1. And if a court found that Torres’ public statements as a congressman did constitute state action, then certainly blocking a journalist from accessing any posts would raise First Amendment questions. The Court acknowledged the problematic nature of account-wide blocking and of “mixed use” accounts:
Because blocking operated on a page-wide basis, a court would have to consider whether Freed had engaged in state action with respect to any post on which Lindke wished to comment. The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, 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. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.
It is not certain that a court would find that Grim has standing to challenge Torres’ blocking. It is further unclear that even if the case proceeded, Grim would be able to prove that Torres has the authority to “speak for the state” on the matters in question. But if the case survived those two hurdles and reached the second Lindke question, it is likely that the mixed nature of Torres account (despite his disclaimer) would present grounds for scrutiny of every post on the account.
How can Members of Congress avoid challenges?
While ultimately we don’t yet know the outcome of the Lindke case (the Court remanded to the trial court for reconsideration under the new two-part test) or its application to situations like Rep. Torres blocking journalists on a personal account, it is clear that public officials should take proactive steps to distinguish between official, campaign and personal accounts and content.
To avoid challenges, we recommend the following:
Maintain separate personal, campaign, and official accounts and clearly note this status in the “bio” of the account
Do not conduct official business through personal or campaign accounts
Do not allow staffers paid by public funds to access or update personal or campaign accounts
Do not allow campaign or personal employees, volunteers, or family members to access or update official accounts
Recommendations for the House Communications and Standards Commission and Ethics Committee:
Clarify bio requirements for lawmakers to distinguish “personal” or “campaign” accounts, perhaps with a specific term like, “unofficial” or with a required link to official account
Clarify that official resources (including staff time) are not to be used for access or updates to campaign or personal accounts
