A Balancing Act: The State of Free Speech on Social Media for Public Officials
By: Raaid Bakridi
1. Introduction
Blocking someone on social media often seems inconsequential since it’s a digital medium and people do it every day.[1] However, the U.S. Supreme Court has an alternative view, especially when the person who commits the act is a public official. The Court held that, in some instances, public officials can be liable for First Amendment violations when they block anyone from their social media page Writing for the majority, Justice Barrett adopted a two-prong test to be used in instances involving public officials and their social media accounts because distinguishing between on- and off-the-job activity is frequently a “difficult [line] to draw”[3] and a “fact-intensive inquiry.”[4] The distinction, according to Justice Barrett, “turns on substance, not labels.”[5] But this isn’t the first time that the Court has been asked to weigh in on social media cases where public officials block their critics, cases which by nature involve possible First Amendment and public forum concerns.
2. Background
Former State Assemblyman Dov Hikind filed a lawsuit against Congresswoman Alexandria Ocasio-Cortez for blocking him on Twitter, now known as X. Hikind claimed that the Congresswoman violated his First Amendment rights by blocking him and other individuals critical of her. This raises concerns about politicians’ and public officials’ use of social media and its implications for free speech. Several of the lower courts have dealt with similar social media blocking issues, and each applied different approaches, leading to a split in authority among the Federal Circuit Courts. When confronted with the issue of blocking, the Second, Fourth, Fifth, Sixth, Eighth, and Ninth Circuit Courts have all used variations of two tests: a totality of the circumstances approach or an appearance-focused approach[10]
In 2021, the Supreme Court had to deal with a similar issue that involved the then-sitting President of the United States, Donald Trump. A group of individuals, including the Knight First Amendment Institute, filed a lawsuit against the President,[11] alleging that their First Amendment rights were violated after they were blocked for criticizing his policies. The District Court agreed,[12] and the Second Circuit upheld the decision.[13] Following this, President Trump appealed to the Supreme Court for a review which was denied.[14] After eleven consecutive conferences on the case, the Court sent it back to the Second Circuit to dismiss as moot.[15]
Although no majority opinion was offered, Justice Thomas wrote a detailed concurrence that essentially “highlights the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward.”[16] Justice Thomas further noted that the case highlights two important facts: “[t]oday’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors … We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”[17] Justice Thomas then concluded that the Trump case was not the right one to do so[18] and that the Court will have to address constitutional constraints on privately owned digital mediums sooner or later.
3. An Opportunity
On April 24, 2023, the Court granted certiorari in Lindke v. Freed.[19] Interestingly, this case is distinctive in that it “require[d] [the Court] to analyze whether a state official engaged in state action or functioned as a private citizen,” reversing the ordinary role and flipping the analysis on its head.[20] Even so, the Court acknowledged its limited experience, adding that it “has had little occasion” to consider issues like this. [21] In its ruling, the Court established new guidelines regarding public officials blocking commentators and critics on social media. “When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private,” Justice Barrett wrote.[22] The Court held that “such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.”[23]
a. What does it mean to possess actual authority to speak on the State’s behalf?
Official authority can be granted in various ways, such as through statutes, ordinances, or customs. To simplify this, the Court’s test asks whether written law or ordinance authorizes the official in question to make official announcements related to their role.[24] However, Courts should not rely on “excessively broad job descriptions” in their analysis.[25] In essence, the conduct must be attributable to the State, meaning that the actor must possess state authority to post, communicate, or inform the public on the State’s behalf. The state official must be entrusted with the responsibility of providing information and updates on social media, the court explained, and that the “presence of state authority must be real, not mirage:”[27] it must be on matters within the official’s “bailiwick.”[28]
To clarify, the Court used an example of a state official posting about restaurants with health code violations and deleting snarky comments from the public. If public health is not within the official’s duty and portfolio, then the post and deletion of comments made cannot be traceable to the State because it was not within the official’s duty and portfolio. The Court noted that “the inquiry is not whether making official announcements could fit within the job description; it is whether making an official announcement is actually part of the job.”[29]
The Court cautioned that authority need not be only from written laws and ordinances. Official authority may also be established by custom or unchecked usage. Have prior officeholders and public officials in the same position followed a “permanent and well-settled”[30] 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.”[31]
b. What does it mean to purport to exercise that authority on social media?
For the second step, the purpose and appearance become relevant to the account in question. The Court stated that the “appearance and function of social media activity” become relevant in the second step but cannot compensate for the lack of state authority in the first step.[32] The distinguishing factor between the Court’s test is that if the speech—here, a social media post—is not used in furtherance of his or her official responsibilities, he or she is “speaking with his [or her] own voice.”[33]
This step requires the official to use social media to further his official duties, which involves considering several factors, such as: whether the person or a political subdivision owns the account, whether the page is designated as a personal page as well, etc.[34] If the page is designated as a personal page, then there is a strong indication that the use is private.
The Court gives an example of a school board president who gave two speeches with the same substance but on different days.[35] The first speech was given at a school board meeting, while the second was given at a family gathering in a backyard. The former is considered state action because the school board president was in his official capacity, while the latter is a private act taken in a personal capacity.[36] The Court cautions that “a public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”[37]
4. A Fix?
The First Amendment is a cornerstone of American democracy, which prohibits government officials from suppressing criticism of their performance, among other things. However, public officials retain their right to free speech and expression. As stated by the Court, private parties can act on behalf of the State, and “state officials have private lives and constitutional rights—including the First Amendment right to speak….”[38] The Court has suggested that it would be useful to include a disclaimer that distinguishes between an account’s personal and official use.[39] It is also essential to determine whether a post was part of the official’s duties and if it was relevant to their government role.[40] Additionally, it is crucial to assess whether the information shared by an official is publicly accessible to determine whether it is a government announcement or a personal post.[41]
But these generous suggestions seem to foreshadow a challenge to the positions taken by Florida and Texas in the NetChoice cases,[42] where the government attempts to label private social media companies as “censors,” by explicitly restating basic principles. Given Justice Thomas’s remarks in the Trump case, it appears that social media issues are confronting the Court now more than ever. It is yet to be seen whether the Supreme Court will take a different stance or lay out additional guidance in considering the NetChoice cases.
Sources
[1] See generally Stephanie Weaver, Survey Finds More Than Half of US Respondents Have Blocked a Family Member on Facebook, Fox5NewYork (June 1, 2022),
[2] See Lindke v. Freed, 601 U.S. 187 (2024).
[3] Id. at 188.
[4] Id. at 197.
[5] Id. at 188.
[6] See, e.g., Knight First Amend. Inst. v. Trump, 928 F.3d 226 (2d Cir. 2019); Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 209 L. Ed. 2d 519 (2021); Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022).
[7] Hikind v. Ocasio-Cortez, No. 19-CV-03956, 2019 WL 2994693 (E.D.N.Y. filed July 9, 2019).
[8] Id. (Compl. ¶¶ 38- 42); see also John Bowden, Ocasio-Cortez Sued Over Twitter Blocks, The Hill (July. 8, 2019),
https://thehill.com/homenews/house/452327-ocasio-cortez-sued-over-twitter-blocks/.
[9] Compare Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022) (a bright-line approach that focuses on whether the social media activity is within the individual’s official duties or whether the individual used government resources to maintain the social media activity) with Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022) (taking a more holistic approach to the analysis by focusing on the social media page’s appearance or purpose).
[10] See, e.g., Davison v. Randall, 912 F.3d 666 (4th Cir. 2019), as amended (Jan. 9, 2019); Robinson v. County of Hunt, 921 F.3d 440 (5th Cir. 2019); Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021).
[11] Knight First Amend. Inst. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y., 2018).
[12] Id. at 549.
[13] Knight First Amend. Inst. v. Trump, 928 F.3d 226, 234 (2d Cir. 2019).
[14] Biden v. Knight First Amend. Inst., 141 S. Ct. 1220 (2021) (A change in the party’s name occurred due to a change in administration—from President Trump to President Biden).
[15] Amy Howe, Justices throw out Trump Twitter case, SCOTUSblog (Apr. 5, 2021),
https://www.scotusblog.com/2021/04/justices-throw-out-trump-twitter-case/.
[16] Biden, 141 S. Ct. at 1221 (Thomas, J., concurring).
[17] Id.
[18] Id. at 1227.
[19] Lindke v. Freed, 601 U.S. 187 (2024).
[20] Id. at 196.
[21] Id.
[22] Id. at 191.
[23] Id.
[24] Id. at 199-201.
[25] Id. at 201.
[26] Id.
[27] Id. at 199.
[28] Id. at 187.
[29] Id.
[30] Id at 200.
[31] Id.
[32] Id. at 187.
[33] Id. at 201.
[34] Id. at 201-03.
[35] Id.
[36] Id.
[37] Id. at 204.
[38] Id. at 188.
[39] Id.
[40] Id. at 199-201.
[41] Id. at 187-89.
[42] NetChoice, LLC v. Paxton, 144 S. Ct. 477 (2023); Moody v. NetChoice, LLC, 144 S. Ct. 478 (2023).
