In an opinion signed by Justice Amy Coney Barrett, the Supreme Court established a test to determine when a public official can be deemed to be engaging in state action to block someone from using their social media accounts. The official must “(1) possess actual authority to speak on behalf of the state on a particular matter, and (2) purport to exercise that authority when speaking in the relevant social media post.”
The court issued a unanimous verdict link v. freed, a case over whether Port Huron, Miss., city manager James Freed violated the First Amendment when he blocked and removed resident Kevin Lindke from his Comments on Facebook page critical of Fried’s pandemic policies. The test creates a new way to determine whether an officer is liable for actions on social media pages that violate citizens’ First Amendment rights.
But it is not enough that a social media page belongs to a public official. “The distinction between private conduct and state action hinges on substance, not labels: Private parties can act under the authority of the state, and state officials have private lives and their own constitutional rights, including First Amendment rights,” Barrett wrote. Speech rights. They work and exercise editorial control over speech and speakers on their personal platforms.”
The difference between private action and state action depends on substance, not labels
Barrett suggested that a simple disclaimer could make a difference in the decision. “Here, if Fried’s account carries a label—for example, ‘This is James R. Fried’s personal page’—he would be entitled to a strict presumption that all of his posts are personal,” the ruling “However, Fried’s page is not designated as ‘personal’ or ‘official.'”
Katie Farlow, senior staff attorney at Columbia University’s Knight First Amendment Institute, said in a statement that the court “is correct in holding that public officials cannot be exempted from First Amendment liability simply by using their personal accounts to conduct official business. “
But, Farlow added, “We are disappointed, however, that the court did not adopt the more pragmatic test used by most appellate courts, which appropriately balances the free speech interests of public officials and those who want free speech.” People’s interests. Talk to them on their social media accounts. We hope that in implementing the new test set out by the Supreme Court today, the courts will bear in mind the importance of protecting speech and dissent in these digital public forums.”
In 2017, the Knight Institute challenged former President Donald Trump over blocking users from his @realDonaldTrump Twitter account. They argued that his account was a “public forum” from which people could not be excluded because of their opinions, and lower courts agreed. In 2021, after Trump left office, the Supreme Court ordered the lower courts to quash the ruling against Trump and dismissed the ruling as moot.
Dhillon Law Group partner Gary Lawkowski said in an emailed statement about the new ruling that “the biggest impact of this opinion may not be the formal test it imposes on what it holds; The language buried in the opinion, effectively providing public officials with an easy way to keep the “personal” aspect of the law in place going forward, is by posting a disclaimer on their social media accounts.”
The justices left and sent the case back to the lower court for a new trial.
