Friday’s unanimous SCOTUS opinion (Lindke v Freed, 601 US __ (2024)) involving the Port Huron, Michigan city manager who sometimes deleted comments and later blocked a user from his public Facebook page offers interesting food for thought for other public officials—including judicial officers.

Even though the case has been remanded for more fact-finding, it seems reasonable to infer that there are no Lindke-like concerns:

• For those who hold public office but have a private social media account.
• For those who hold public office, maintain a public social media account, and do not delete critical comments or block other users.
• When a comment is not about government (State) matters.

SCOTUS decided that there can be § 1983 concerns, however, when a public official prevents someone from commenting on the official’s social-media page and the public official both (1) possessed the actual authority to speak on the State’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts (pp 1–2).

See the legal fog rolling in?

SCOTUS noted that an official’s public employee status is not determinative. The Court rationalized that the distinction between private conduct and state action turns on substance, not labels.

There are no bright lines, SCOTUS acknowledged:

Hard-to-classify cases require awareness that an official does not necessarily purport to exercise his authority simply by posting about a matter within it. He might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection. Moreover, many public officials possess a broad portfolio of governmental authority that includes routine interaction with the public, and it may not be easy to discern a boundary between their public and private lives. Yet these officials too have the right to speak about public affairs in their personal capacities. See, e.g., id., at 235–236. Lest any official lose that right, it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts. And when there is doubt, additional factors might cast light—for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business (p 14).

Now what?

On the positive, we have guidance about some scenarios for when Lindke is not in play (see the earlier bullet list).

It’s also important to remember that this area remains in development. So it’ll be worth keeping an eye on how the record is developed and this new test is applied on remand.

CourtListener’s free docket link may be worth the bookmark, setting up a free account, and activating the alert.