Nearly 75% of America’s population today actively uses social media. Facebook and Twitter have become invaluable channels of information, and are often the main source for reading up on current events or participating in movements or politics. In recent years, public officials of every rank have used social media to communicate with constituents.
Which poses a conundrum: when public officials use their personal social media pages to carry out their jobs, are they engaging in state action?
The Circuits are split on the answer. In Lindke v. Freed, the 6th Circuit held that a Facebook “page” maintained by James Freed, the city manager of Port Huron, Michigan, was not state action, and that Freed could therefore block critical comments made about him by a constituent. Freed’s page listed himself as a “public figure”; included “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI” in the “About” section; and listed the Port Huron website as his page’s website, the City’s general email for “City Administration and Staff” as his page’s contact information, and the City Hall address as his page’s address. Despite these things, the 6th Circuit held that Freed operated his Facebook page in his personal capacity only, reasoning that operating the page was not Freed’s official responsibility, the page was not paid for with government resources, and the page did not belong to the office of city manager (e.g., Freed could take it with him when he left the position).
Yesterday, July 27, 2022, the 9th Circuit published Garnier v. O’Connor-Ratcliff, which took the opposite approach and found state action in the use by two members of the Poway Unified School District Board of Trustees of their Facebook and Twitter pages to communicate with constituents and solicit input about important events and issues, and prohibited the Trustees from “blocking” critical commentators. The 9th Circuit noted that although use of social media was not required by the Trustees’ positions, it was “overwhelmingly geared toward providing information to the public,” “had the purpose and effect of influencing the behavior of others” in connection with governmental business, and was “related in some meaningful way” to the Trustees’ governmental status. The court further concluded that the comment space on the Trustees’ web pages were either public fora or limited public fora, subject to constitutional limitations on viewpoint and time/place/manner restrictions (see today’s Volokh Conspiracy blog for a helpful summary digest of these holdings).
Interestingly, in conducting its time/place/manner analysis, the 9th Circuit made a distinction between a traditional public forum and social media, noting that “in physical city hall meetings, where there is limited time and space available for public remarks, lengthy, irrelevant or repetitious comments interfere with the rights of other speakers or prevent the government from accomplishing its business,” therefore justifying removal of those speakers from the room. By contrast, the 9th Circuit noted that the technological features of Facebook and Twitter “[render] repetitive comments only minimally distracting” by “automatically truncat[ing]” long comments and making it easy for a reader to ignore and quickly scroll past them – and therefore such comments do not justify a complete block of the offending user.
The 9th Circuit’s position conflicts with the 6th Circuit and is consistent with holdings by the 2nd, 4th and 8th Circuits, including the Second Circuit’s decision involving then-President Trump’s blocking of some people from his Twitter account (subsequently vacated as moot by SCOTUS after President Trump left office).
Ultimately, SCOTUS will need to resolve the issue by deciding whether state action should be determined by examining a page’s appearance or purpose, or instead by considering the actor’s official duties and use of government resources.
Krista L. Baughman is a partner of Dhillon Law Group, Inc., whose practice focuses on First Amendment law and litigation.