*Shanae T. Jones
I. Introduction
It is well-settled that constitutional demands are generally directed at the government, not private actors.[1] When a private individual acts under the authority of the government, however, their conduct may fall within the scope of the Constitution.[2] The idea that only state action is subject to regulation by the Constitution is of the utmost importance when private individuals seek recourse for harm caused by public officials, and may be the crux of a Section 1983 claim.[3]
In two pending Section 1983 cases, O’Connor-Ratcliff v. Garnier and Lindke v. Freed, the Supreme Court will determine whether public officials violated the First Amendment by blocking private individuals from their social media pages.[4] The Second, Fourth, Eighth, and Ninth Circuits approach this question by considering the appearance and purpose of the online activity to determine if there was state action.[5] The Sixth Circuit, on the other hand, assesses “whether the official is ‘performing an actual or apparent duty of his office.’”[6] The O’Connor-Ratcliff and Lindke decisions could clarify the blurred lines between public officials’ online activity that is truly private and that which is attributable to the government.[7]
II. Current Controversies
In O’Connor-Ratcliff v. Garnier, petitioners Michelle O’Connor-Ratcliff and T.J. Zane (the Trustees) created Facebook and Twitter pages to campaign for election to a local school district’s board of trustees.[8] Upon election, they updated the pages with their new titles and continued posting school district-related content.[9] Respondents Christopher and Kimberly Garnier (the Garniers) criticized the Trustees on the social media pages.[10] The Trustees responded by hiding or deleting the posts before ultimately blocking the Garniers.[11] The Garniers sued and the U.S. Court of Appeals for the Ninth Circuit found in their favor, holding that the social media pages were public fora and blocking the Garniers constituted state action.[12]
In Lindke v. Freed, respondent James Freed updated his existing Facebook page to reflect his appointment as city manager for Port Huron, Michigan.[13] After petitioner Kevin Lindke criticized Freed’s performance as city manager, Freed deleted Lindke’s comments and blocked him from the page.[14] Lindke filed suit. On appeal, the Sixth Circuit affirmed a judgment for Freed; the court found that his Facebook activity had no connection to his authority or duty as city manager.[15]
III. First Amendment Implications
Historically, the Supreme Court has relied on the idea that government is a body of self-governing people––sometimes called the “democratic process theory”––to justify free speech and limit the government’s ability to regulate it.[16] Under this theory, the government must allow the free exchange of political speech to understand the people’s “attitudes, needs, and wishes.”[17] While a finding that the social media activity of public officials constitutes state action would increase protection of political speech,[18] it could also create a “chilling effect,” deterring public officials and candidates for office from any online activity.[19] The Court generally disfavors decisions where efforts to censor unfavorable expression will deter protected expression.[20] Furthermore, social media presence offers insight that could help voters when casting their ballots.[21] From this perspective, the Court faces the dilemma of either preserving the democratic process by protecting speech or derailing it by discouraging public officials’ candor and authenticity on social media.
In deciding both cases, the Supreme Court will focus on the issue of whether public officials must act pursuant to their official duties or under the authority of their offices to establish state action.[22] That is, whether the Sixth Circuit got it right. The Ninth Circuit focused on “appearance and content” in finding that “the Trustees held their social media pages out to be official channels of communication with the public about the work of the . . . [b]oard.”[23] By contrast, the Sixth Circuit declined to consider appearance, finding no state action because operating the page was not a duty of Freed’s office and maintaining it did not invoke government authority.[24] The Ninth Circuit approach arguably strips public officials of their First Amendment right to discuss work on social media in the same manner as private individuals by “transform[ing] all their conduct into state action,”[25] while the Sixth Circuit approach licenses them to act without consequence whenever their actions are not part of their official duties.[26]
Despite the implications of both approaches, resolving the split may not change the decision on the merits of either O’Connor-Ratcliff or Lindke. A finding that state action does not exist absent official duty or governmental authority may not yield a favorable result for the Trustees in O’Connor-Ratcliff because the lower court held that the social media pages functioned as designated public fora.[27] A designated public forum is property intentionally opened by the government for expressive activity.[28] The court’s holding suggests that even if maintenance of social media pages alone is not an official duty, the Trustees affirmatively maintaining their pages as a place for expression constitutes state action because designated public fora––by definition–– require action by the government. Similarly, if the Court cements the Ninth Circuit approach, the Lindke result could remain the same if the fact finder determines that Freed’s page does not appear to be “an organ of official business.”[29]
IV. Conclusion
In a world where online interactions between government actors and constituents show no sign of declining,[30] it is incumbent upon the Supreme Court to define the rights and recourse available to individuals and public officials in that arena. Neither of the warring approaches to state action are without First Amendment implications.[31] Rather than adopting a singular approach, the Court should explore methods that protect the First Amendment right to speech without sacrificing the willingness of public officials to engage with constituents online.
*Shanae T. Jones is a third-year evening student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review, a Distinguished Scholar of the Royal Graham Shannonhouse III Honor Society, and a Law Scholar for Professor Lynch’s Civil Procedure I class. While in law school, Shanae works as a child welfare social worker. Shanae was a summer associate at Ballard Spahr during the summer of 2023 and looks forward to returning to the firm in the upcoming summer of 2024.
[1] See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (“Although the conduct of private parties lies beyond the Constitution’s scope in most instances, governmental authority may dominate an activity to such an extent that its participants must be deemed to act with the authority of the government and, as a result, be subject to constitutional constraints.”).
[2] Id.
[3] See 42 U.S.C. § 1983 (creating a cause of action for people against government actors who violate their federal rights).
[4] Debra Cassens Weiss, Supreme Court Will Decide When Public Officials Can Block People from Personal Social Media Accounts, ABA J. (April 24, 2023, 3:05 PM), https://www.abajournal.com/news/article/supreme-court-to-decide-when-public-officials-can-block-people-from-personal-social-media-accounts.
[5] Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1174–77 (9th Cir. 2022) (explaining the approach taken across the circuits.
[6] Lindke v. Freed, 37 F.4th 1199, 1201 (6th Cir. 2022) (quoting Waters v. City of Morristown, 242 F.3d 353, 359 (6th Cir. 2001)); see also Garnier, 41 F.4th at 1176.
[7] Petition for Writ of Certiorari at 8, Lindke v. Freed, 143 S.Ct. 1780 (2023) (No. 22-611).
[8] Garnier, 41 F.4th at 1163.
[9] Id.
[10] Id. at 1166.
[11] Id.
[12] Id. at 1177.
[13] Lindke v. Freed, 37 F.4th 1199, 1201 (6th Cir. 2022).
[14] Id. at 1201–02.
[15] Id. at 1207.
[16] See, e.g., Buckley v. Valeo, 424 U.S. 1, 14 (1976) (“Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution. The First Amendment affords the broadest protection to such political expression . . . .”); Burson v. Freeman, 504 U.S. 191, 196 (1992) (stating that speech concerning government affairs is essential to self-government); Mills v. State of Alabama, 384 U.S. 214, 218 (1966) (“[T]here is practically universal agreement that a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.”).
[17] Russell l. Weaver & Catherine Hancock, The First Amendment: Cases, Problems, and Materials 7 (6th ed. 2020).
[18] Cf. Donald Morgan, Supreme Court to Examine Intersection of First Amendment and Social Media, Taft Stettinius & Hollister LLP: Law Bulletins (April 27, 2023), https://www.taftlaw.com/news-events/law-bulletins/supreme-court-to-examine-intersection-of-first-amendment-and-social-media (arguing that when activity does not qualify as state action, it is “less likely to trigger First Amendment liability.”).
[19] See generally Monica Youn, The Chilling Effect and the Problem of Private Action, 66 Vand. L. Rev. 1473, 1474 (2013) (defining chilling effect within the context of the First Amendment).
[20] See New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).
[21] See Ashwini Kulkarni, A Study on the Impact of Social Media on Elections, 4 Indian J.L. & Legal Rsch., June–July 2022, at 1, 5.
[22] Petition for Writ of Certiorari at 2, O’Connor Ratcliff v. Garnier, 143 S.Ct. 1779 (2023) (No. 22-324); Petition for Writ of Certiorari at 2, Lindke v. Freed, 143 S.Ct. 1780 (2023) (No. 22-611).
[23] Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1171 (9th Cir. 2022).
[24] Lindke v. Freed, 37 F.4th 1199, 1207 (6th Cir. 2022).
[25] Petition for Writ of Certiorari, supra note 22, at 21.
[26] See Morgan, supra note 18.
[27] Garnier, 41 F.4th at 1179.
[28] Id. at 1177.
[29] Id. (quoting Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021)).
[30] Id. at 1163 (“[E]lected officials across the country increasingly rely on social media both to promote their campaigns and, after election, to communicate with constituents and seek their input in carrying out their duties as public officials.”).
[31] See supra Part IV.
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