The Case

On March 15, 2024, the U.S. Supreme Court issued its decision in Lindke v. Freed, 22-611, 2024 WL 1120880 (U.S. Mar. 15, 2024) (“Lindke”). The case originated from the Sixth Circuit and involved a city manager who was challenged for deleting and blocking an individual’s comments on his personal Facebook page.

Facebook user Kevin Lindke commented on some of the city manager’s posts, expressing his displeasure with the city’s approach to the COVID-19 pandemic. Initially, the city manager deleted Lindke’s comments, then eventually blocked him from commenting at all. Lindke sued the city manager under 42 U.S.C. § 1983, alleging that the city manager had violated his First Amendment rights.

The New Test

The Court established a new two-part test to determine whether a municipal official can be sued for a constitutional violation in the context of managing social media – the complaining social media user must show the municipal official had both (1) actual authority to speak on behalf of the municipality on a particular matter and (2) that he/she purported to exercise that authority in the relevant post(s).

Best Practices and Mitigation of Risks

While a great tool for keeping the public informed, posting on social media by municipalities and public employees/officials requires managing risk and avoiding pitfalls.  The risks can be mitigated with the establishment of strong policies and procedures and active management by trained staff.

For higher-level municipal employees and officials that have authority to communicate on behalf of their agencies, caution is warranted. In light of Lindke, individual municipal employees and officials should expressly designate their accounts as personal and unofficial. Generally, they should not comment or post on agency-related issues/topics on their personal social media accounts.  If the employee or official chooses to post about agency-related issues/topics on their personal account, the post should be limited to information contained on official platforms maintained by the agency and expressly include a statement that the post is being made in the individual’s personal, non-official capacity. Finally, careful consideration must occur before removing or blocking individuals that comment on posts that are arguably official in nature to avoid First Amendment liability as recognized in Lindke.

Agencies that create and maintain social media accounts should do so under a strong social media policy. The policy should address the ground rules for management of the account, establishing the account as a limited public forum, and terms for acceptable use and commenting by third parties. Part of the agency’s social media policy should include guidance on when the agency can remove a comment or block a third party as well as disclaimer language for posting to the social media page itself. If your municipality needs assistance on developing a social media policy, please contact Peter Ruffatto or Allison Beard at CSD Attorneys at Law.