Lindke v. Freed and O’Connor-Ratcliff v. Garnier

Today, the Supreme Court issued unanimous decisions in Lindke v. Freed and O’Connor-Ratcliff v. Garnier. These two cases focus on public officials’ use of social media and were both sent back to lower courts for further proceedings with a new test to apply.

What you need to know

• Question before the Court: Whether a public official violates the First Amendment by deleting comments and/or blocking an individual from the official’s personal social media account when the account is sometimes used to communicate job-related matters but arguably not as part of any governmental authority or duty.
• What happened during oral arguments: There was extensive discussion in the oral arguments of both cases about what the test should be for determining when a state official’s use of a social media account is personal versus when it is a part of their job. Several justices referenced the reality of how many people use social media to speak to personal interests intermingled with messages about their work. The Court engaged in a long discussion trying to tease out how public officials, both elected and unelected, might use and/or limit access to their platforms and where to draw the line when it comes to determining “state action” for the purposes of determining violations of constituents’ First Amendment rights.
• What did the Court decide: In Lindke v. Freed, Justice Amy Coney Barrett wrote a narrow opinion for a unanimous Court laying out a test for determining when a government official’s social media posts are state action and thus potentially violative of a private citizen’s First Amendment rights. That test requires the individual(s) bringing such a claim to show that the government official “(1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” Both Lindke and O’Connor-Ratcliff were remanded for further proceedings under this new test.
• Take Away: In a key passage, the Court notes “An act is not attributable to a State unless it is traceable to the State’s power or authority. Private action—no matter how ‘official’ it looks—lacks the necessary lineage.” Online communications from public officials often appear to blur the lines, with officials sharing personal photos of family on their official pages and reposting public announcements on their private pages. The clarity the Court attempts to provide for courts on this issue is one of actual power lying behind the appearances. The Court notes that a “views expressed are strictly my own” disclaimer would help public officials protect themselves by providing clear context to their page, so expect such disclaimers to become the norm moving forward.
• Anything else: While the two cases remanded today involved local officials, former President Trump’s tweets loomed large in the background. Justice Elena Kagan noted during oral argument that Trump conducted an extensive amount of government business on his Twitter account. In today’s Lindke opinion, the Court does not shut the door on challenges to public officials’ blocking private citizens from their pages but rather seeks to provide clarity on when, and against whom, such challenges can be brought.