Freed speech: Posts on personal social media may constitute state action

On March 15, 2024, the U.S. Supreme Court issued a decision in Lindke v. Freed that lays out a two-part test for when a public official’s social media activity constitutes state action. According to the Court, a public official’s posts on social media are attributable to the government if the official had the actual authority to speak on the government’s behalf and the official purported to speak on the government’s behalf.

Background

James Freed started a private Facebook page in 2008. He used the platform prolifically and had thousands of friends. Facebook limits a user’s total number of friends to 5,000, so he made his page public, meaning anyone could view and comment on his posts. He identified himself as a “public figure” on the page.

In 2014, Freed became city manager for Port Huron, Michigan. In his Facebook biography, he identified himself as a father, a husband, and “City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” His profile picture depicted him in a suit wearing a city lapel pin. After his appointment to city manager, he posted information on Facebook related to his job, such as information about local school visits, details about the city’s reconstruction of a boat launch, and updates about the city’s efforts to streamline leaf pickup.