Court Defines When Public Official's Social Media Violates Free Speech

The Supreme Court issued a pair of rulings this week that set the test for when the First Amendment prohibits a public official from restricting access to their social media. The rulings send the cases back to the lower courts for application of the Court's new test.

Both cases arose when local public officials blocked users from their social media. In both cases, the officials used social media for both public posts and personal posts. The blocked users sued, arguing that the officials violated the First Amendment. In response, the officials argued that their use of social media did not constitute state action, and so neither Section 1983 nor the First Amendment applied.

The Court ruled that the First Amendment applied to public officials' mixed-use social media when (1) the public official had actual authority to speak on behalf of the government on a particular matter and (2) the public official purported to exercise that authority in the relevant posts. As to (1), the Court said that "[t]he alleged censorship must be connected to speech on a matter within [the official's] bailiwick." It also said that "[d]etermining the scope of an official's power requires careful attention to the relevant statute, ordinance, regulation, custom, or usage."

In sum, a defendant . . . must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.

As to (2), the Court said that "the public employee [must] use his speech in furtherance of his official responsibilities" and that this can sometimes (as with speech "on an ambiguous page") require "a fact-specific undertaking in which the post's content and function are the most important considerations." The Court also noted that the technology mattered. For example, "[b]ecause blocking operated on a page-wide basis, a court would have to consider whether [an official who blocked users] had engaged in state action with respect to any post on which [the user] wished to comment." "If page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designed personal account therefore exposes himself to greater potential liability."