In “Case” You Missed It is a new column by Balch & Bingham attorney Tripp DeMoss that briefly summarizes a recently issued decision by higher courts like the U.S. Supreme Court and Alabama Supreme Court in cases of interest to Alabamians that they might not have otherwise heard about.
On March 15, 2024, the U.S. Supreme Court issued opinions in two companion cases regarding the constitutional implications of social media accounts used by public officials. The main opinion, Lindke v. Freed, 144 S. Ct. 756 (2024) (“Lindke”), was a unanimous decision by all nine justices written by Justice Amy Coney Barrett.
In Lindke, James Freed, a city manager for the City of Port Huron, Michigan, maintained a Facebook page that was initially his private page, but which he increasingly used for public purposes after he became city manager. He would use it to post photos of his family and the like, but he also used it frequently for posting information about city activities. As most relevant in Lindke, Mr. Freed used his page to post about the city’s response to COVID-19.
A Port Huron resident, Kevin Lindke, was critical of the city’s approach to the pandemic, and frequently commented on Freed’s city-related Facebook posts with criticisms about the city’s pandemic response. Freed began deleting some of Lindke’s comments, and eventually “blocked” Lindke from his account. Lindke sued Freed in federal court for violating his First Amendment rights.
In the opinion, the Supreme Court didn’t rule directly for either side, but rather, created a new legal test for these types of cases. The Court found that a person might have a right under the First Amendment not to be “blocked” from a public official’s private social media page, because that official is engaging in “state action,” where the official “possesses actual authority to speak” on the government entity’s behalf when posting on a social media account, and when the official “purport[ed] to exercise that authority when he spoke on social media.”
It was unclear in Lindke where exactly Mr. Freed’s official vs. private conduct on Facebook fell within the lines established by the Court’s new standard. Indeed, what the Supreme Court’s decision will mean in practice moving forward is difficult to say, given the ubiquity of social media accounts operated by public officials. One thing is clear though— there will be a lot of litigation in the near future regarding government officials’ use of social media accounts, especially in cases where a person has been “blocked.”
You can read the Supreme Court’s opinion in Lindke here and in the companion case O’Connor-Ratliff v. Garnier here.
Tripp DeMoss is an attorney at Balch & Bingham in Montgomery, AL. He specializes in litigation, appeals, labor & employment matters, and public policy. A graduate of the University of Alabama and Georgetown University Law Center, he formerly served as a legislative aide and counsel in the U.S. House of Representatives, and as a political appointee in the U.S. Department of Labor. The views expressed here are his own, and should not be taken as legal advice.
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