��ݮ��ƵAPP����

The Supreme Court’s March 15 decisions in  and , addressing when public officials’ use of personal social media accounts constitutes state action, largely vindicated the positions ��ݮ��ƵAPP���� set forth in amicus briefs filed in both cases last year. 

In Lindke, we urged the Court to reverse the decision of the U.S. Court of Appeals for the Sixth Circuit, which held a city manager’s social media page did not constitute state action. In ��※��DzԲԴǰ�-�鲹�ٳ������ڴڱ�, we urged the Court to affirm the decision of the U.S. Court of Appeals for the Ninth Circuit, which held that school board members’ pages constituted state action. 

The Supreme Court, in a unanimous decision by Justice Amy Coney Barrett, reversed and remanded in Lindke, and in a per curiam decision, reversed and remanded in ��※��DzԲԴǰ�-�鲹�ٳ������ڴڱ�. In Lindke, the Court developed a new test for determining when state action is present, and in both cases the lower court decisions were vacated with instructions to apply the new test on remand. In articulating the new test, the Court borrowed a little bit from both the Sixth and Ninth Circuit’s approaches and reached an outcome that corresponded to what we advocated.

In Lindke, the Sixth Circuit applied an “actual or apparent official duties” test, in which a public official’s use of social media would not be considered state action unless (1) it was part of his actual or apparent duties, and (2) his use of the website could not happen in the same way without the authority of the office. 

FIRE opposed this test because it appeared to limit state action to situations in which the government directly mandates, funds, or operates the social media account. The Sixth Circuit touted this as a “bright line rule,” which we criticized as providing a clear roadmap for enabling officeholders to avoid constitutional constraints against blocking or deleting critical commenters. We advocated that the Court instead affirm the “purpose or appearance” or “nexus” test the Ninth Circuit applied in ��※��DzԲԴǰ�-�鲹�ٳ������ڴڱ�, which required reviewing courts to consider a range of factors in determining state action, including how the social media site appears and is used.

From ��ݮ��ƵAPP����’s perspective, the Court wisely rejected the Sixth Circuit’s bright line rule, which we argued would be used by government officials to block dissenting voices. 

The Court rejected both tests and adopted a two-part test in which a public official’s use of a personal social media account is considered state action when: (1) the official has actual authority to speak on the State’s behalf; and (2) he purports to exercise that authority when speaking on social media. Critically, Justice Barrett stressed that an “official cannot insulate government business from scrutiny by conducting it on a personal page.” The resulting test captures a broader range of purportedly “personal” social media activity than what the Sixth Circuit would have found under its “actual or apparent official duties” test, but the test is not quite as expansive as the Ninth Circuit’s “purpose or appearance” test.

First, what does it mean for an official to be ‘possessed of state authority’ to post on job-related matters? 

Official authority can be conferred by “statute, ordinance, regulation, custom, or usage.” Most directly, the Court’s test asks whether written law or ordinance authorizes the officeholder in question to make official announcements related to his position.

This doesn’t necessarily have to be an explicit grant, given the general powers and duties of the office involved. “[A] grant of authority over particular subject matter may reasonably encompass authority to speak about it officially” (e.g., as the director of the state department of transportation). However, courts must not rely on “excessively broad job descriptions.” The relevant inquiry is whether making official announcements is “actually part of the job.”

But official authority also may be established by custom or usage. Have prior officeholders in the position followed a “permanent and well-settled” practice of speaking for the government? “[I]f an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.” Also, misuse of power possessed by virtue of state law can constitute state action. Whatever the source of authority may be, the alleged censorship “must be connected to speech on a matter within [the official’s] bailiwick.”

Second, what are the indicators of purporting to exercise state authority when public officials speak on social media?

This is where the “purpose and appearance” of the social media site becomes relevant. As Justice Barrett wrote in the unanimous ruling, “The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.”

The Supreme Court, Big Tech, and the dark art of politics

News

Will the Court upend First Amendment protections for social media platforms in NetChoice v. Paxton? Let’s hope not.

Read More

To meet this part of the test the official must use the social media platform in furtherance of his governmental responsibilities. The Court observed that a range of factors are significant in making this determination: Does the account belong to the individual or to a political subdivision? Also, is the page labeled as a personal page? If so, there is a heavy (but not irrebuttable) presumption the use is personal. However, a “public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.” The Court observed that “mixed use” pages could be either official or personal. Categorizing posts on an ambiguous page requires a “fact-specific inquiry” in which a post’s “content and function are the most important considerations” (e.g., an official announcement of policy made “exclusively on his Facebook page” or notice and comment rulemaking). In such cases, “it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” But if an official uses staff to make posts, he “will be hard pressed to deny that he was conducting government business.”

Another important factor to consider is the way in which blocking constituent comments is effectuated. In this analysis, the officeholder’s burden of justification increases along with the magnitude of the blocking of constituent comments. “If page-wide blocking is the only option,” the Court wrote, “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.”

No ‘bright line’ 

From ��ݮ��ƵAPP����’s perspective, the Court wisely rejected the Sixth Circuit’s bright line rule, which we argued would be used by government officials to block dissenting voices. As the Court observed, “the distinction between private conduct and state action turns on substance, not labels.” It recognized a “close look is definitely necessary in the context of a public official using social media. This is because “[m]any use social media for personal communication, official communication, or both—and the line between the two is often blurred.” 

Thus, as we advocated and the Court has now reaffirmed, “the state-action doctrine demands a fact-intensive inquiry.”

Other important takeaways 

As we have noted, the issues confronting the Court this term in the social media cases are interconnected in various ways. Here, the Court unanimously reaffirmed the role of state action in First Amendment analysis. It stressed the “need for governmental action is also explicit in the Free Speech Clause, the guarantee that Lindke invokes in this case. Justice Barrett’s opinion reaffirmed that “the Free Speech Clause prohibits only governmental abridgment of speech,” and not “private abridgment of speech.” 

By categorically restating this basic rule here, the Court appears to foreshadow significant skepticism about the positions espoused by Florida and Texas in the NetChoice cases, in which the states try to characterize private social media platforms as “censors.”