To the Sixth Circuit: Government officials should not have discretion to block critics on their social media accounts when they are used for government purposes

Legal intern Danya Hajjaji was the lead author of this post.

The Sixth Circuit must carefully apply the new “state action” test developed by the U.S. Supreme Court to ensure that public officials who use social media to speak on behalf of the government do not have free rein to violate the First Amendment rights of critics, the EFF and the Knight First Amendment Institute at Columbia University said in an amicus brief.

The Sixth Circuit is to decide again Lindke vs Freedcase that was recently sent back to the Supreme Court. The lawsuit arose after Port Huron, Michigan, resident Kevin Lindke posted critical comments on City Manager James Freed’s Facebook page. Freed responded by blocking Lindke from viewing, much less continuing to post, critical comments on Freed’s public profile. The dispute centered on the nature of Freed’s Facebook account, which interspersed updates about his involvement in government with personal posts.

Public officials who use social media as an extension of their office are taking “state action,” which refers to acting on behalf of the government. They are bound by the First Amendment and generally cannot engage in censorship, especially viewpoint discrimination, by deleting comments or blocking citizens who criticize them. While social media platforms are private corporate entities, government officials who run interactive online forums to engage in public discussion and share information are bound by the First Amendment.

The Sixth Circuit initially ruled in Freed’s favor, finding that no action could be taken due to the prevalence of personal posts on his Facebook page and the lack of government resources, such as employees or taxpayer money, devoted to maintaining it.

The case then went to the U.S. Supreme Court, where EFF and the Knight Institute filed a brief urging the Court to establish a functional test that would recognize state action when a government official uses a social media account to carry out his or her official duties, even if that account is sometimes used for personal purposes.

The U.S. Supreme Court has created a new two-pronged test for state action: A government official’s social media activity is state action if 1) the official “had actual authority to speak” on behalf of the government and 2) “purported to exercise that authority” when speaking on social media. As we wrote when the decision was issued, this state action test doesn’t go far enough to protect internet users who interact with public officials online. Nevertheless, the Court has finally provided further guidance on the issue.

Now that the case has returned to the Sixth Circuit Court of Appeals, EFF and the Knight Institute have filed a second brief supporting a broad interpretation of the state Supreme Court’s action test.

In short, the argument goes, the “authority” test requires nothing more than a showing, whether by written law or unwritten custom, that the official had the right to speak on behalf of the government generally, regardless of the medium of communication—whether a personal press conference or social media. It need not be a specific right to post on social media.

In the case of high-ranking officials (such as presidents, governors, mayors, and legislators), courts should have no problem finding that they have clear and broad authority to speak about government policy and actions. The same is true for heads of government agencies, who are also generally authorized to speak on matters of broad concern to those agencies. In the case of lower-level officials, courts should consider their areas of expertise and whether their social media posts were related to topics that the Supreme Court has said are their “bailiwick.”

The brief also argued that the “practice” nature of the test requires courts to make what the Supreme Court called a “fact-specific undertaking” to determine whether an official made statements on social media in the discharge of his or her governmental duties.

This element is easily met when the social media account is owned, created, or operated by the office or agency itself, rather than an official — for example, the Federal Trade Commission’s @FTC account on Site X (formerly Twitter).

But when an account belongs to an individual and is sometimes used for nongovernmental purposes, courts must consider the content of the posts. That includes posts from which the plaintiff’s comments were removed, or any posts that the plaintiff would have liked to have seen or commented on had the official not blocked them altogether. Former President Donald Trump is a striking example, who routinely used his @realDonaldTrump X account, rather than the government-created and operated @POTUS account, to make statements in the discharge of his official duties as president.

However, it is often not easy to distinguish personal from official speech based solely on the posts themselves. For example, a social media post may be either personal speech reflecting personal political passions or speech intended to fulfill official duties, or both. If so, courts must consider additional factors when evaluating posts made on a mixed-purpose account. These factors may include the appearance of the account, such as whether government logos are used; whether government resources, such as staff or taxpayer funds, were used to operate the social media account; and the presence of any clear disclaimers as to the purpose of the account.

EFF and the Knight Institute also encouraged the Sixth Circuit to consider the critical role social media plays in facilitating public participation in the political process and accountability for government officials and institutions. If the Supreme Court’s test is interpreted too narrowly, public officials will continue to circumvent their constitutional duties by blocking critics or deleting any trace of disagreement from social media accounts that are used to support and perform their official duties.

Social media has given rise to active democratic engagement, as government officials at every level have used it to reach out to their communities, discuss political issues, and make important government announcements. Overly restricting the views of any member of society threatens public discourse in spaces that government officials themselves have opened up as public political forums.