Can Public Employees Unintentionally Convert Their Private Facebook Account Into a Public Forum Subject to the First Amendment?

An often misunderstood part of America’s guarantee of “free speech” is that the Constitution (the source of free speech rights), restricts only the government’s ability to regulate speech. Private citizens are not prohibited from restricting speech. For example, a restaurant owner may deny service to a customer who is wearing a political shirt which the owner finds offensive. But, the city in which the restaurant is located cannot pass an ordinance which requires restaurants to deny service to customers who wear a shirt which supports a specific political party.

Thus, for an individual to have a lawsuit under the First Amendment for a violation of free speech, the individual must first be able to prove “state action,” i.e. that the government, and not a private individual, caused the deprivation of rights.

Usually, this distinction is not difficult. Typically, its apparent whether the government is restricting speech or whether a private individual is restricting speech. On March 18, 2024, however, the Supreme Court issued a decision in a case where the distinction was not easy to determine. Today’s Long Island employment law blog discusses the decision issued in Lindke v. Freed.

Lindke v. Freed presented the question of whether a government employee who maintains a personal Facebook page, is a state actor when the employee blocks particular individuals from his Facebook page.

In Lindke, the defendant, Freed, created a Facebook account in 2008, while in college, and set his privacy so that only friends could view his page. His “friends” grew over the years, eventually exceeding the 5,000 friend limit imposed by Facebook. Freed then converted his page to a public page, allowing anyone with an account to view his page. This, in turn, required that Freed alter his account type and he chose to categorize himself as a public figure.

In 2014, Freed became the city manager for Port Huron, Michigan. Freed added his work information to his Facebook profile, including, among other things, his title and email address. As described by the Court, Freed posted on his Facebook page “prolifically”, adding pictures of his daughter, bible verses, and pictures of home improvement projects.

But, Freed also posted information about his job. For example, he posted city communications about financial reports, and new city services. Freed’s page readers would sometimes interact with his posts, offering typical Facebook comments such as “good job.” Other times, readers would ask Freed specific questions about city services or ordinances, such as regulations concerning property owners keeping chickens. Freed would reply to many of the comments and questions, but occasionally, Freed would delete comments he considered derogatory or stupid.

During the pandemic, Freed continued posting on Facebook, typically about how his family was managing through it. He also posted more specific COVID-19 information such as case counts and hospitalization. Freed also posted some city specific information, including city press releases and a description of the city’s hiring freeze.

The plaintiff, Lindke, was dissatisfied with the city’s handling of the pandemic. He visited Freed’s Facebook page and expressed this dissatisfaction with comments describing the city’s response as, for example, “abysmal”. At first, Freed deleted Lindke’s comments, but later, Freed blocked Lindke entirely from his Facebook page. This resulted in Lindke suing Freed for violating the First Amendment, claiming that Freed’s Facebook page was a public forum.

The trial court dismissed Lindke’s lawsuit and the appellate court affirmed the dismissal. The basis of the dismissal was that Lindke was not acting in his official capacity as a state official. Without state action, a First Amendment case cannot be maintained.

Things get more complex here. The Supreme Court took the case because different jurisdictions across the country disagreed on which legal test should be used to determine whether an individual is a state actor or whether the individual is acting as a private citizen. In the Lindke case, the Supreme Court set the standard for all courts in the country.

The Constitution does not establish a private right action for a First Amendment violations. In plain English, this means that individuals cannot sue the government for violating their First Amendment rights. Rather, to enable such lawsuits, Congress passed a statute, codified at 42 U.S.C. § 1983 (commonly referred to as Section 1983). Section 1983 allows individuals to sue the government when any person acting under color of law deprives a person of a federal constitutional or statutory right.

In Section 1983 cases, there is rarely a question about whether an individual is acting under color of law. Indeed, courts and litigants often gloss over this question in legal arguments about the merits of a Section 1983 case. Individuals plainly act under color of law when acting in official capacities as police officers (in a police misconduct case), public school officials, or prison officials. Individuals are plainly not acting under color of law when they are acting as a parent in silencing a child or as a neighbor in a noise dispute.

In Lindke, the issue was murkier. Freed did not relinquish his First Amendment rights when became city manager. He was able to maintain a private life, and to convey information he may have learned by virtue of his government employment. But, this does not mean that Freed did not act in an official capacity by blocking by Linkde.

To determine whether a public employee’s social media activity is state action, the Supreme Court set a two part test. First, the employee must have actual authority to speak on behalf of the government. Second, the employee must have purported to use that authority when speaking on social media.

The crux of the Lindke decision seems to be the Supreme Court’s recognition that government employees should be able to share information related to their jobs without fear that their social media activity could be construed as state action, exposing them to First Amendment liability. Instead of blanket immunity, the Supreme Court established a reasonable test to determine whether social media activity is state action or private action.

Notably, the Supreme Court’s decision suggests some best practices which could limit liability and clearly delineate private action from state action. For instance, government workers who identify their job title on social media should clearly designate their personal Facebook account as a personal account, unrelated to the government. Such officials should not use “mixed use” accounts, by which they make official and personal comments under the same account. Officials who are indeed authorized to speak on behalf a government, should identify one Facebook account as the official account, and another as the personal account.

Ultimately, Lindke’s case was returned to the trial court, so that it could determine the outcome in accordance with the test set forth by the Supreme Court. A final note, the Lindke decision was a unanimous decision of the Court.

Today’s blog is informational only and should not be accepted as legal advice. For advice about particular situations, contact a First Amendment lawyer at Famighetti & Weinick PLLC. Our phone number is (631) 352-0050.

Can Public Employees Unintentionally Convert Their Private Facebook Account Into a Public Forum Subject to the First Amendment?