The decision delivered on March 15, 2024, by Justice Amy Coney Barrett addressed increasingly pervasive questions about the interplay between public officials’ use of social media and the First Amendment. The unanimous decision introduced a new, two-pronged test for evaluating when an official’s speech on social media may be deemed “government action” and, thus, subject to First Amendment constraints. First, the official must possess actual authority to speak on the government’s behalf regarding a particular matter. Second, the official must hold him or herself out as exercising that authority when speaking on social media.
The case involved the City Manager of Port Huron, Michigan, who deleted comments and blocked a user who criticized the City’s pandemic response from his personal Facebook page. Regarding the first prong, the Court clarified that an individual’s status as a government official or employee, by itself, was not conclusive of his or her actual authority. Instead, the officials’ authority must be based on a specific statute, ordinance, regulation, or well-established custom, and the speech or action in question must be directly related to that authority.
In discussing the second prong, the Court emphasized that public officials do not forfeit their First Amendment rights when they are elected or appointed to public office and, thus, that it is critical to distinguish whether an individual’s speech was made in his or her “official” or “personal” capacity. Significantly, the Court noted that the use of disclaimers on a social media page, such as “this is the personal page of John Q. Public,” creates a “heavy presumption” that the posts on that page are made in a personal, as opposed to an official, capacity.
In this case, the Court found that the City Manager’s page was not clearly “personal” or “official” but, instead, appeared to be a “mixed-use” page where he made some posts in his personal capacity and others in his capacity as City Manager. The Court noted that, in such cases, the boundary between “public” and “private” posts is often difficult to discern and bluntly suggested that public officials expose themselves to greater potential liability if and when they fail to keep their personal social media posts in a clearly designated personal account.
This decision has important implications for local governments and public officials and will likely shape the landscape for social media use in the public sector moving forward. The Court made significant strides by providing clear guidance on key issues that will help public officials mitigate the risks associated with social media use. However, many questions remain unresolved, and the unfolding interpretations and applications of the Court’s new, two-pronged test in the lower courts over the coming months and years will warrant close attention.
If you have any questions regarding this decision or the impact it may have your organization, please contact Mark Kimzey at (312) 506-4461 or mkimzey@airdowerwas.com, or Michael Vecchione at (312) 506-4466 or mvecchione@airdowerwas.com.