Free Speech Constraints on Public Officials’ Social Media Pages
Legal Sidebari
Free Speech Constraints on Public Officials’
Social Media Pages
November 13, 2023
On October 31, 2023, the Supreme Court heard oral argument in two cases challenging public officials’
social media activity, O’Connor-Ratcliff v. Garnier and Lindke v. Freed. Government actors are
constrained by the First Amendment, including when they act online. As such, when the government
creates a public forum online, its ability to bar people from the forum is limited by the First Amendment.
If public officials use a forum such as a social media page for both private and government activity, it can
be open to debate whether or how the First Amendment applies. This question has been a regularly
recurring issue in the lower courts—one high-profile ruling in 2019, discussed in a prior Legal Sidebar,
involved a First Amendment challenge to then-President Trump’s decision to block users from his Twitter
account. (Twitter has since been renamed “X,” but at the time periods relevant in this and other cases
discussed in this Legal Sidebar, the officials had “Twitter” accounts.) The appeals courts in Garnier and
Freed employed different legal tests to determine whether public officials’ use of social media constituted
state action implicating the First Amendment. The cases could have significant implications for federal
officials, including Members of Congress, who operate social media pages.
Legal Background
The First Amendment’s Free Speech Clause prevents the government from “abridging the freedom of
speech.” The First Amendment only restricts the government. A private party’s actions that burden another
person’s speech usually will not implicate the First Amendment. This is referred to as a “state action”
requirement. The word “state” in this phrase is used in the general sense to refer to the government,
including federal, state, and local governments. This constitutional requirement is reflected in the main
federal statute that authorizes lawsuits against state or local officials who violate the Constitution: 42
U.S.C. § 1983. That law applies to a person who, “under color” of state law, deprives another person of
the rights, privileges, or immunities secured by the Constitution. The Supreme Court has said this “under
color” of law requirement is identical to the Constitution’s state action requirement. The Court has
recognized a variety of tests to determine whether an action was taken by the government. For example,
one Supreme Court case asks “whether there is a sufficiently close nexus between the State and the
challenged action,” so that the challenged action “may be fairly treated as that of the State itself.”
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State action questions may arise when public officials allegedly violate the First Amendment through their
social media use. Generally, if a government employee or elected official restricts citizens’ ability to
obtain information or speak in a public forum, that action can implicate the First Amendment—whether
the forum is in a park, in a community building, or online. A growing body of cases in lower courts has
recognized that government officials can violate free speech protections if, for example, they block a
constituent on social media because they find the constituent’s viewpoint offensive. Nonetheless, First
Amendment protections are only triggered if the official was engaged in state action. When a government
official uses a social media account for both personal and government activity, it may be unclear whether
the actions restricting others’ speech were taken in a private or public capacity. (These cases thus present
distinct state action questions from Murthy v. Missouri, a case the Supreme Court agreed to hear this term
that involves questions about whether the government coerced admittedly private parties into acting.)
The Supreme Court has said that “generally, a public employee acts under color of state law while acting
in his official capacity or while exercising his responsibilities pursuant to state law.” This standard can
include an official who purports to act under government authority. For instance, in Griffin v. Maryland,
the Court held that a deputy sheriff hired as security by an amusement park was acting under color of
state authority when he excluded Black patrons from the park. Although he acted on private property and
solely under the control of a private employer, he “wore a sheriff’s badge and consistently identified
himself as a deputy sheriff,” purporting to exercise his authority as a deputy sheriff. The Court said it was
“irrelevant that he might have taken the same action had he acted in a purely private capacity.”
In a 2019 challenge to a county official’s decision to ban a constituent from her Facebook page, the
Fourth Circuit summarized the tests federal appeals courts have used to determine whether a public
official acted in a private capacity. The Fourth Circuit stated that “although no one factor is
determinative,” an action is “more likely to be” state action if it was made possible by the defendant’s
status as a public official or if it occurs while the defendant is performing a duty of the office. The court
held that the county official in the case acted under color of state law because she used the Facebook page
“to further her duties as a municipal official,” including informing the public and soliciting input on
public issues. In contrast, in another case, the Eighth Circuit ruled that a state representative had not acted
under color of state law when she blocked a user on Twitter, because her account was used
“overwhelmingly for campaign purposes” rather than official business, even after she took office.
As mentioned above, the Second Circuit held in 2019 that then-President Trump violated the First
Amendment by blocking users from his Twitter account. The Second Circuit did not reference the nexus
test or the tests cited by the Fourth Circuit. It concluded instead that although the President had initially
created his Twitter account as a private citizen in 2009, his use of the account during his presidency was
no longer private given “the record of substantial and pervasive government involvement with, and
control over, the Account.” This opinion was later vacated by the Supreme Court on procedural grounds,
with instructions to the Second Circuit to dismiss the case as moot.
Garnier v. O’Connor-Ratcliff: Ninth Circuit Ruling
The first case heard by the Supreme Court on October 31, Garnier v. O’Connor-Ratcliff, is an appeal from
a Ninth Circuit opinion holding that two public officials had violated the First Amendment. Two school
board trustees had created Facebook and Twitter accounts while campaigning for office. Once in office,
they used the accounts to provide information, solicit input, and generally communicate about school
board activity. The trustees blocked two parents in the school district, the Garniers, after they left lengthy
and repetitive comments complaining about the superintendent and race relations in the district. The
Garniers alleged this blocking violated the First Amendment by retaliating against them for their speech
and preventing them from further commenting.
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On the state action question, the appeals court applied the reasoning of a line of Ninth Circuit cases
addressing actions by off-duty government officials. Those cases focused on whether a “public official’s
conduct, even if ‘seemingly private,’ is sufficiently related to the performance of his or her official duties
to create ‘a close nexus between the State and the challenged action,’ or whether the public official is
instead ‘pursu[ing] private goals via private actions.’” The court concluded the trustees’ use of their social
media pages was state action because (1) looking to the “appearance and content” of the pages, the
trustees identified the pages as official and used them as official channels of communication about school
board work; (2) the trustees used the pages to influence the behavior of others, including by seeking
public feedback and responding to comments; and (3) their posts—and their decision to block the
Garniers because of their comments—“related directly” to the trustees’ duties and were linked to their
official status. The Ninth Circuit viewed this analysis as consistent with the approaches taken by the
Second, Fourth, and Eighth Circuits in the cases referenced above. The court recognized, however, that its
analysis was “somewhat different” from the approach adopted by the Sixth Circuit in Lindke v. Freed.
Lindke v. Freed: Sixth Circuit Ruling
The Supreme Court also agreed to hear an appeal of Lindke v. Freed. The public official in that case,
Freed, converted his private Facebook profile into a public page before holding public office. Once he
became city manager, he listed that title and official city contact information on his page. He posted about
his personal life as well as city business. Freed blocked Lindke based on his negative comments
responding to Freed’s posts about the city’s COVID-19 policies, and Lindke sued Freed for First
Amendment violations.
In its opinion, the Sixth Circuit said it has applied a different version of the nexus test when it evaluates
whether a public official acted in his state capacity, as opposed to when it evaluates whether a private
party’s action is attributable to the state. The court’s so-called “state-official test” asks “whether the
official is ‘performing an actual or apparent duty of his office,’ or if he could not have behaved as he did
‘without the authority of his office.’” The Sixth Circuit explained that, in contrast to the analysis used by
other federal appeals courts, this test focuses on “the actor’s official duties and use of government
resources or state employees” rather than “a page’s appearance or purpose.” Applying this test, the court
held that Freed’s posts “do not carry the force of law simply because the page says it belongs to a person
who’s a public official.” Although Freed used the page to communicate with constituents about city
responsibilities, similarly to the trustees in Garnier, the Sixth Circuit concluded Freed was not performing
any duties of the office because no statute, ordinance, or regulation required him to operate a Facebook
page. The Sixth Circuit also stressed that the page would not be passed along to the next city manager and
that city resources were not regularly used to maintain the page.
Arguments at the Supreme Court
The Supreme Court granted the petitions for certiorari in Garnier and Lindke on the question of what the
proper state action test is in these circumstances. The government officials in both cases—the trustees in
Garnier and city manager in Lindke—have urged the Supreme Court to adopt the Sixth Circuit’s “duty or
authority” test. The United States submitted amicus briefs in support of the government officials but
suggests the Court should apply a slightly different test in ruling for the officials. The United States
claims that the private nature of the property where the speech occurs should be “all but dispositive”: if a
government official blocks someone on “her own personal property, she’s probably acting in her capacity
as a private property owner, not as an agent of the state.” When an official denies access to private
property, the United States contends state action is present only if the official “is invoking official powers
or exercising a traditional and exclusive public function.” Finally, the blocked constituents in both cases
argue for a broader view of state action. At bottom, the Garniers claim that state action was present in
their case because the trustees “were doing their job” in running and administering their social media
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pages. Lindke emphasizes that the Supreme Court has never adopted a “one-size-fits-all test” and says a
page’s “appearance and function” can be an important consideration in these dual-role cases.
At oral argument, the attorneys for the trustees and the United States seemed to walk back their strict state
action tests slightly. Multiple Justices pressed the parties on the private property test, questioning both
how that applies to social media pages and whether official activity becomes immunized from
constitutional scrutiny solely because it takes place on private property. The attorneys for the United
States acknowledged that if a government official were performing a duty of the office, that could qualify
as state action even if performed on private property.
There was also significant discussion at oral argument of when a government official is performing a
duty, and the attorneys for the trustees, city manager, and United States distanced themselves from the
Sixth Circuit’s approach to this factor. As Justice Sotomayor pointed out, the Sixth Circuit effectively held
that to qualify as state action, a duty must be expressly and specifically written into law. The attorneys for
the trustees, the city manager, and the United States all agreed that at minimum, some customary
activities could also qualify as duties. The attorneys arguing in Lindke took the narrowest approach to this
issue, saying a custom would need to be backed by significant force such as police enforcement. At the
same time, all the attorneys supporting the government officials argued for a stricter view of duty than the
Ninth Circuit took. The trustees argued in their briefs that it was insufficient for the content of their pages
to be merely related to their official duties; instead, they claimed, their pages had to be operated for the
purpose of carrying out official duties. As the city manager’s attorney contended, state action should not
be present “every single time a government employee talks about their job and they happen to be in
public.” Some Justices seemed sympathetic to these arguments. In particular, Justice Kavanaugh raised
concerns about too broadly sweeping in any and all communications related to official duties. Justice
Alito also asked whether a mayor who is approached by constituents in the grocery store would be
performing official duties if he listens to their positions or tells them to call his office.
The attorneys for the blocked constituents argued for a broader conception of function or duty that asks
whether the government official was doing their job, regardless of whether there was a specific
authorization for that exact activity. Both attorneys claimed state action is present where a government
official creates and maintains a channel for communicating with constituents, distinguishing this
circumstance from a situation where an official is approached in the grocery store.
In part, the constituents’ arguments also seemed to relate to the concept of whether the government
official had authority, or the appearance of authority. The Garniers’ attorney, for instance, suggested that
where a government official does not have a formal or customary duty to communicate with constituents,
then the inquiry should turn to whether the official had the authority to do so. Justice Gorsuch asked the
Garniers’ attorney whether the parties were “coalescing around a test that everybody more or less agrees
on”—one that focuses both on duties and authorities and also takes into account custom as well as any
written duties. The attorney responded that “appearance and function are also relevant to whether
someone is engaged in state action.” Lindke’s attorney seemed to link the question of appearance to the
authority aspect of the state action test, saying state action is present if “you hold yourself out as doing
your job through your page,” requiring reference to the page’s design and content. The city manager, in
contrast, claimed that a mere appearance or pretense of authority is insufficient to meet the authority
prong of the Sixth Circuit test.
Continuing the focus on authority, the trustees argued their pages’ references to their offices did not create
state action where the power to use those pages was not made possible because of the indicia of office.
The trustees’ attorney repeatedly stressed that the trustees were engaged in speech that could have been
made in a private capacity, and that the Court should find there was no state action because there was no
government control over the speech and no government resources used. Justice Jackson posed a
hypothetical that seemed to push back on this idea. Implicitly referencing Griffin v. Maryland, she asked
whether, if police officers provided security at a concert on private property, they would be engaged in
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state action even if they were “not doing anything more than a private security guard could have done.”
The United States responded that the officers would be engaged in state action if they were performing
official duties and if they were hired as police officers because their state authority made them more
effective. The United States claimed this analogy did not carry over to social media, though, where state
authority does not make a “block” more effective since “anyone can block equally.”
Implications for Congress
An opinion interpreting the Constitution’s state action requirement could have significant implications for
federal and state officials, in the First Amendment and other constitutional contexts. The Supreme Court’s
ruling in the Garnier and Lindke cases could help determine when a government official’s social media
page is subject to First Amendment limitations. This could be relevant for Members of Congress who use
social media pages for both personal and official business.
Ultimately, the state action inquiry is only a preliminary consideration under the First Amendment. Even
if a government official is speaking as a state actor, a court may still conclude the official has not created
an open public forum with the social media page. The public forum issue is explored in a different Legal
Sidebar, but courts often look to whether the government official has opened the page up for constituent
speech, and what policies limit the type of speech allowed on the page. If a government official clearly
states limitations on the page’s use at the outset, that can sometimes preclude free speech claims.
One concern the attorneys for the trustees and the United States raised was that if speech is official, it
could be subject to government control; for example, the city manager’s supervisor could tell him what he
could say on his “official” Facebook page. The attorneys expressed concern that an overly expansive view
of state action could unduly restrict the free speech rights public officials should retain in their capacity as
private citizens, limiting their ability to choose what to post. In the trustees’ brief, they specifically
expressed concern about restricting government officials’ rights of “editorial discretion.” In short,
editorial discretion refers to the idea that private parties have constitutional rights to decide whether and
how they will distribute others’ speech. This concept is at the core of another set of cases the Supreme
Court is set to hear this term, which will consider a trade group’s challenges to state laws restricting
online platforms’ ability to moderate user content. That trade group, NetChoice, filed amicus briefs in
Garnier and Lindke cautioning against a ruling that would restrict digital services’ editorial discretion.
The oral arguments in the Garnier and Lindke cases did not wade into this issue, although some of the
Justices’ questions about online platforms’ control over government pages suggested they may have been
considering the intersections between the various social media cases the Court is set to hear this term.
Author Information
Valerie C. Brannon
Legislative Attorney
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