Social Media and State Action: The Supreme Court Considers When Government Officials Block Commenters “Under Color of” State Law

When public officials block commenters from their social media pages, are they acting “under color of” state law for purposes of 42 U.S.C. § 1983? Yesterday, October 31, 2023, the Supreme Court heard oral arguments in two cases, Lindke v. Freed and O’Connor-Ratcliff v. Garnier, asking the Court to resolve a circuit split on this issue. The United States filed briefs as amicus curiae and participated in oral argument on behalf of the government officials in both cases.

Background
Both cases challenge local government officials’ use of personally created social media accounts to block commenters. While some circuits—including the Second, Fourth, Eighth, Ninth, and Eleventh¹—consider numerous factors like the appearance and content of the account, the Sixth Circuit in Lindke articulated a bright-line “duty-or-authority test,” which narrows the inquiry to whether a public official’s social media activity was either in furtherance of governmental “duties” or depended on “state authority.” 37 F.4th 1199, 1203 (6th Cir. 2022).

In Lindke, Petitioner Kevin Lindke posted comments on Respondent James Freed’s Facebook page that were critical of Freed’s handling of the COVID-19 pandemic as the town’s City Manager. In response, Freed deleted Lindke’s comments and then blocked Lindke from posting further comments on Freed’s Facebook page. The Sixth Circuit affirmed the district court’s grant of summary judgment for Freed, holding that, because Freed did not operate the page pursuant to his official duties and did not depend on state authority in doing so, he was not acting “under color of” law for purposes of 42 U.S.C. § 1983. Id. at 1205.

Here, the Sixth Circuit found, the duty prong was not satisfied because “no state law, ordinance, or regulation compelled Freed to operate his Facebook page.” Id. at 1204. The activity also did not depend on state authority because the page “did not belong to the office of city manager,” and Freed did not “rely on government employees to maintain it.” Id. at 1205. In its analysis, the Sixth Circuit eschewed other circuits’ emphasis on the appearance of a public official’s social media account, explaining that such questions “resemble the factors we consider in assessing when police officers are engaged in state action,” which are relevant only in those cases because an officer’s “appearance actually invokes state authority.” Id. at 1206 (emphasis in original).

By contrast, in Garnier v. O’Connor-Ratcliff, the Ninth Circuit applied an “appearance and content” test in holding that Petitioners Michelle O’Connor-Ratcliff and T.J. Zane, both elected local school board members, engaged in state action when they blocked Respondents Christopher and Kimberly Garnier from accessing their personally created Facebook and Twitter accounts. See 41 F.4th 1158 (9th Cir. 2022). The Ninth Circuit “decline[d] to follow the Sixth Circuit’s reasoning” in Lindke, finding instead that considerations of appearance and action were both relevant in determining whether a public official’s social media activity was under color of state law. Id. at 1177. Here, the court found that the school board members were state actors where “a private citizen could not have created and used the Trustees’ pages in the manner that they did because the Trustees clothed their pages in the power and prestige of their offices and created and administered the pages to perform[ ] actual or apparent dut[ies] of their offices.” Id. at 1177 (internal citations and quotation marks omitted).

Oral Argument
During the arguments on October 31, 2023, the justices grappled with what Justice Neil Gorsuch described as the “profusion of possible tests” for determining state action in the social media context without arriving at a clear consensus. The justices’ questions highlighted the potential implications for the Court’s ruling in both cases. In response to the petitioners’ argument in O’Connor-Ratcliff that the Court should adopt the Sixth Circuit’s “duty-or-authority” test, Justice Elena Kagan asked a series of questions modeled on former President Donald Trump’s petition for certiorari in 2021 challenging the Second Circuit’s holding that he violated the First Amendment by blocking social media users from accessing comment threads on his Twitter (now known as X) account². Although petitioners’ counsel acknowledged that that case presented “a harder question” because a government staffer helped President Trump run his social media account, Justice Kagan also asked whether President Trump would have been acting as a state official if “he gave every indication of writing his tweets himself” and he did create his own posts without the help of staffers. Even in such circumstances, Justice Kagan noted, President Trump “seems to be doing . . . a lot of government on his Twitter account,” even “announcing policies” at times. Accordingly, Justice Kagan observed, Twitter “was an important part of how he wielded his authority.”

Counsel for the petitioner in Lindke fielded questions from the justices about how much personal content on a public official’s social media page would take the account out of the realm of state action under the petitioner’s proposed test. Justice Samuel Alito asked whether the petitioner would draw the line for state action at “like 1 percent, one-half of 1 percent” content related to official duties. Counsel responded that the test was qualitative rather than quantitative, relating to “whether you’ve established [a forum] as a channel of communication.” Justice Brett Kavanaugh expressed concerns that “to define doing your job as talking about your job is really quite all-encompassing . . . because a lot of elected officials I’ve been around love going to the grocery store and talking to people after church, and that’s where they learn things to help them do their job[s] better.”

The justices also voiced doubts regarding the government’s position that the dispositive factor for the state action analysis is whether the property is publicly or privately owned. Chief Justice John Roberts noted that he “was very surprised in reading the [government’s] brief to see all the emphasis on private property.” Justice Roberts further inquired, “[I]n what sense is this really private property? . . . [I]t’s just the gathering of the protons or whatever they are.” Deeming the government’s proposed test “archaic,” Justice Kagan emphasized that “more and more of our government operates on social media” and framed the Court’s task in these cases as finding rules to meet an ever-changing world. 

Conclusion
Whether the Court adopts the fact-intensive inquiry of the O’Connor-Ratcliff court or the bright-line rule articulated by the Sixth Circuit in Lindke, its ruling will have significant consequences for public officials at all levels of government. If the Court applies a “duty-or-authority” rule, officials will retain substantial latitude to post content related to their roles on personal social media accounts without risking a finding that they are state actors for purposes of the First Amendment. On the other hand, if the Court embraces the multi-factored “appearance and content” standard used by other circuits around the country, officials with personally created social media accounts will need to tread carefully—perhaps by omitting official titles and updates regarding their government positions entirely—to avoid qualifying as state actors.

¹See Knight First Amend. Inst. v. Trump, 928 F.3d 226, 231, 234–36 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220 (2021); Davison v. Randall, 912 F.3d 666, 680–81 (4th Cir. 2019); Campbell v. Reisch, 986 F.3d 822, 826–27 (8th Cir. 2021); Charudattan v. Darnell, 834 F. App’x 477, 482 (11th Cir. 2020) (per curiam).

²After President Trump left office, the Court vacated the Second Circuit’s judgment and remanded for the court to dismiss the case as moot without addressing the merits. See Biden v. Knight First Amend. Inst., 141 S. Ct. 1220 (2021).