Lindke v. Freed: Social Media as State Action in the Post-Trump Era

Trump’s rise to political prominence, fueled by his adept use of Twitter to “dictate and dominate the news cycle,” marked a significant shift in the exercise of political and governmental authority in the twenty-first century. This sea change in the projection of power, coupled with the rapid ascent of Facebook, Instagram, and X (formerly Twitter), has left hapless regulators and legislators scratching their heads. Despite a slew of congressional inquiries investigating their role in the 2020 election, the COVID-19 pandemic, and child exploitation, there remains a stark division at the highest level of government on how to construe their position as the new “town square.” Two sister cases, Lindke v. Freed and O’Conner-Ratcliffe v. Garnier, aim to determine the precise extent to which officials can block users or delete comments without infringing on their First Amendment rights. By issuing writs of certiorari for the two, the Supreme Court seemed eager to end the debate once and for all. Having recently issued opinions on the twin cases — argued only hours apart on October 31st, 2023 — an examination of legal precedent and the Justices’ lines of questioning offers fruitful glimpses into the future of government officials’ use of social media and is necessary to interpret the significance of the unanimous ruling in favor of Freed.

Argued on March 6, 2019, in Knight First Amendment Institute at Columbia University v. Trump, the Second Circuit U.S. Court of Appeals took the first steps toward resolving these questions by answering the most straightforward of them all: can a public official block constituents on an account that is used to exercise authority in the public sphere? Ruling that @realDonaldTrump was a “presidential account as opposed to a personal account,” the court held that Trump could not block users from his account as it violated their First Amendment rights to engage in a “designated public forum.” While Trump petitioned the Supreme Court for an appeal, the case was declared moot following Trump’s permanent Twitter ban after January 6, robbing the Court of a useful opportunity to create a lasting test for what constitutes the use of government authority on social media.

In Lindke v. Freed and O’Connor-Ratcliffe v. Garnier, however, the Court was tasked with reconciling two directly contradictory opinions with little precedent to guide them. Both cases left judges struggling to conclusively determine how to define state action on social media, as they made tenuous, if not unfounded, comparisons to brick-and-mortar fora. In Lindke v. Freed, the petitioner sued under 42 U.S.C. § 1983, claiming that James R. Freed — a city manager in Port Huron, Michigan — acted under the “color of law” by describing himself as city manager and answering questions for constituents on his Facebook page. In doing so, Mr. Freed clothed himself with authority that could lead a constituent to reasonably interpret it as state action, posting and reposting a variety of directives and policies issued by him in his official capacity, alongside personal content like pictures of his family and of his dogs. Lindke, on the other hand, proposed a test for state action that relies instead upon the “[creation of] a channel for communicating with constituents about in-office conduct.” The Sixth Circuit Court of Appeals ruled on the side of Mr. Freed using an “authority or duty” test, holding that Freed acted only in a personal capacity because his conduct was not involved with his duties as a public official. Conversely, O’Connor-Ratcliffe v. Garnier is a nearly identical case between blocked individuals — the Garniers — and two local trustees who removed their comments and later blocked them from their social media pages. In their appellate ruling, the Ninth Circuit used the “nexus” test, which investigates the presence of state action by ascertaining whether there is a “close nexus between the State and the challenged action that the seemingly private behavior may be fairly treated as that of the State itself.”

In an era where a resoundingly conservative court, grounded in the precedent of Knight First Amendment Institute v. Trump, might be expected to side against the deprivation of free speech for a private citizen in the shadow of an overpowering government, the Justices showed an aversiveness both to Lindke’s broad “appearance and function” test from Garnier’s Ninth Circuit ruling and Freed’s proposed “authority and duty” test used in the Sixth Circuit. Kavanaugh and Gorsuch, in particular, shared concerns about Freed’s overeager line drawing on state action, where any discourse by a public official about their job might unduly constitute state action. They referenced the Pickering-Connick test, which asserts that a public employee’s speech is only protected from employer punishment if it concerns issues of broader public interest — i.e. public debate around policy, legislation, or the health of the community — and is made in the capacity of a citizen. Justice Sotomayor, on the other hand, criticized the potentially dangerous precedent that the narrow conception of state action held by the “authority or duty” test would set, within which official authority is only used if “the state is providing resources, personnel, [and] time for personnel.” Justice Kagan seemed surprised by the usage of the “appearance and function” test in Lindke’s argument based on the overwhelming dominance of personal content over official content on Freed’s page, stating, “I would have thought that the ‘what it looks like’ is the worst test for you, because … it’s hard to look at this page as a whole, unlike the one in [O’Connor-Ratcliffe v. Garnier], and not think that surely this could not be the official communication channel.”

In their recent opinion, issued on March 15th and undersigned by Justice Coney Barrett, the Court ruled 9-0 for Freed. Electing to use neither an overly minimalist “authority and duty” test nor an overly expansive “appearance and function” test, the Justices chose a middle way, affirming the Sixth Circuit’s ruling and vacating O’Connor-Ratcliffe. Despite the ostensible resistance to Lindke’s argument, the Justices confirmed that they look favorably on a case-by-case, qualitative examination, hesitant to create the “bright-line” definition of state action that Freed sought. Strongly averse to the expansive standard pushed by Lindke and seeking to balance the rights of private citizens to public fora while protecting the speech of millions of federal employees, the Court created a new, two-prong test. It requires a plaintiff to demonstrate that the official functionally, rather than ostensibly, holds authority and whether the official professed to speak for the state or in his personal capacity as a citizen. Notwithstanding Justice Coney Barrett’s fears over “nightmares of litigation,” the Court opted for a case-by-case analysis, as undue litigation could easily be thrown out under qualified immunity and time, place, and manner restrictions.

In conclusion, the Supreme Court’s oral arguments and recent decisions in Lindke and O’Connor-Ratcliffe have established a much-needed precedent for free speech and state action on social media, striking a critical balance between the public interest in accessing officials’ communications and protecting the rights of individuals in the digital public square. With its emphasis on whether or not the official purports to act under state authority, the ruling places greater responsibility on government employees to deliberately mark their accounts as either official or personal to avoid confusion while simultaneously safeguarding their rights to speech as private citizens. This resolution is essential in an era where social media platforms have become central to governance and political discourse, reflecting the evolving landscape of the First Amendment in the information age.

Will Vogel is a sophomore at Brown University, double concentrating in Political Science and International and Public Affairs. He is a writer for the Brown Undergraduate Law Review and can be contacted at william_vogel@brown.edu. 

Julian Cohen is a sophomore at Brown University, double concentrating in History and International and Public Affairs. He is an editor for the Brown Undergraduate Law Review and can be contacted at julian_@brown.edu.