In this age of social media, many public officials, including members of Boards of Education and administrators, maintain social media accounts. Like many others, public officials use social media to connect with friends and family, but it has also become a tool to reach those they serve. It is not uncommon to scroll through “Board Member Smith’s” Facebook page to see a post of a recent family outing or birthday mixed in with posts of School District news. When an official opens themselves up to its citizens, they also open the door to public scrutiny. With social media we can easily avoid those negative comments with a quick click of the “block” button. But what are the consequences of a public official denying an individual access to information they are displaying for the public? The Unites States Supreme Court is set to answer this question when it hears oral arguments in Lindke v. Freed and O’Connor-Ratcliff v. Garnier on October 31, 2023.
The Court will examine two important questions:
1. Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his of her office; and
2. Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.
The questions in each case are substantially the same. Both Lindke v. Freed and O’Connor-Ratcliff v. Garnier hinge on whether the use of social media by these public officials is considered state action and thus subject to the First Amendment. In other words, are social media pages used by public officials an arm of the government or would they be considered like those of a private citizen. If the former is found, a public official blocking citizens from their social media page may be a violation of a citizens First Amendment rights, because the amendment protects against government censorship, not censorship by a private citizen.
In Lindke v. Freed, Mr. Freed, the City Manager of Port Huron Michigan once had a private Facebook profile, only allowing those who he requested or accepted as a “friend.” Mr. Freed then changed his profile to a “page.” Rather than authorizing who was able to view and interact with his Facebook, Mr. Freed was now public and any individual had the ability to “follow” his page. Mr. Freed listed his title as Port Hurons “Chief Administrative Officer,” and listed his official city email and city halls address on his page. Mr. Freed’s posts involved a mix of birthday photos, family outings, City policies, and City news. Mr. Lindke, a citizen of Port Huron, took issue with some of the policies implemented by the city (specifically the COVID-19 policies). As many citizens do when they are dissatisfied with a certain policy or official, they take to social media to be heard. Mr. Lindke began posting comments to Mr. Freed’s page that led to Mr. Freed blocking him from the page.
In O’Connor-Ratcliff v. Garnier, while campaigning for seats on their school board, two Trustees created Facebook and Twitter pages. The two were eventually elected and began posting about school district business and news under their official titles. Unlike Lindke, the Trustees used their social media profiles exclusively for school district business, board meetings, and other official news. Parents began leaving negative comments which the Trustees would delete. Mr. and Mrs. Garnier, parents of children in the school district were eventually blocked from the Trustees social media pages.
The Courts came down on opposing sides. In Lindke the Court concluded Mr. Freed was using his Facebook page as a private citizen would. The Court reasoned that because the page was not used to fulfill official duties and was not maintained under his government authority, it remained personal. Postings on the page related to the job as City Manager did not transform the page from personal use. The Court in Garnier came to a different conclusion. While the Court recognized the Trustees were not required to have Facebook and Twitter as part of their official duties, the use of their accounts were directly tied to their duties by the way in which they used the accounts (school district business and news) and the fact that the pages identified them as board members. As a result of these differing conclusions, the law remains murky when it comes to public official’s use of social media and what constitutes state action.
Social media has changed the way we interact, receive our news, exchange ideas, and debate. While members of the public were once required to file into a room for an opportunity to address members of the board, or schedule a meeting with the Superintendent, District officials are now a click away.
While we await the Supreme Court’s decision in these two cases, it may be prudent to establish rules of decorum commentors must follow. However, during that time board members and administrators who use social media accounts to promote school district news and business should be mindful that blocking an individual may have First Amendment implications.