By: Elizabeth Esterow
Volume IX – Issue I – Fall 2023
I. Introduction
Social media is a tool that has been tactfully used to blur the lines between work and home life. While in theory, an employee should be able to leave their life at work and act however they decide out-of-office, social media has begun to give employers the ability to pass judgment on what is acceptable off the clock behavior. Over seventy percent of employers look at candidates' social media profiles before making hiring decisions. [1] This is a significant breach of the line that separates a person’s work and personal life. However, as many employers would argue, social media is a distinct way to judge a person’s character and how that character may affect the workplace. When evaluating social media in this light, the questions arise: Who is judging the social media accounts of those who do not have direct bosses and managers? Who is responsible for evaluating the social media accounts of public officers?
Since social media is relatively new, there is very little court precedent on how federal and state governments should regulate public officers’ accounts. The Supreme Court is currently hearing multiple cases regarding social media regulation. Some scholars claim that decisions from these cases will create a “whole new world of Supreme Court doctrine with respect to social media platforms.” [2] This paper will focus on Linkde v. Freed, a case where a city manager blocked a disagreeing constituent from his social media account. If a public officer is posting on their social media accounts in regard to their political enactments or views, their statements should be subject to regulation by the government. Not doing so would give state officials the ability to prohibit certain freedoms and generate further bipartisanship and political inflammation within the country.
II. Background on Linkde. v. Freed and Applicable Legal Rules
i. How Social Media is Regulated in Society
Regular employees can also be fired for what they post on social media. This is especially applicable if an employee’s personal posts impact their workplace environments. Several court cases, such as Ellis v. Bank of N.Y Melon Corp, have sided with the employers who had fired an employee due to their personal account posts that had subsequent negative effects on the company. [3] For an average employee, no social media posts, especially posts on accounts that are public, are safe from the scrutiny of their employer. These standards that employees are held to in regard to their social media activity have appeared to be forgotten when it comes to employees of the state. While the average employer is allowed to evaluate an employee's social media as a way to judge character, fit for the job, and acceptable out-of-work behavior, people who are employed as government officials do not have any higher power applying the same rules and judgments to them. Historically, public officers have faced little to no regulation or responsibility when it comes to their social media activity, especially if that activity occurs on personal accounts. It can be debated that this discrepancy in social media regulation of an average citizen versus a public officer exists because state officials do not have a traditional “boss” in their workplace. The American governmental system of checks and balances ensures mutual accountability, but still does not place any one officer directly beneath a stereotypical manager or person capable of hiring or firing an officer on a whim.
The presence of social media in politics and the power that a singular post, block, or retweet can wield is an aspect of the political landscape that cannot be ignored. Since the inception of social media, there have been countless posts made by powerful public officers, on both sides of the political spectrum, that have sparked controversy and inflamed tensions. Former President Donald Trump had countless tweets that claimed the 2020 election was rigged and that the results were not to be accepted by the general public. One included him proclaiming, “This travesty cannot be allowed to stand. It was a Rigged Election…” [4] Journalists, politicians, scholars, and more now attribute the January 6, 2021 insurrection on the capital to being largely caused by Trump’s unregulated inflammatory tweets. In addition to calling for violence, public officers can use their social media accounts to spread false information, block people who speak out against their policies, and largely control the narrative that exists around themselves and their political party. This poses a serious question about the regulation of public officers’ social media accounts. If an average employee would be fired for posting violent, inappropriate, or company-damaging things on their personal accounts, why should government officials not be treated in the same manner when they are posting things that would clearly damage the fabric of American society and politics?
ii. Linde v. Freed Background
Linkde v. Freed is a case about the social media accounts of a Michigan city manager. While Lindke is a story of local politics, this case sets a precedent for the social media regulation of all public officials in the country. James Freed had a Facebook account for many years and was an avid poster. After gaining too many friends to remain a private account, Freed made his Facebook profile public, labeling himself a “public figure.” [5] Freed was granted the title of city manager for Port Huron Michigan in 2014. To reflect this change in his government status, Freed changed some of the information listed in his Facebook profile. He put his government title in the “About” section of his profile, and also linked the city office’s information as his personal contact information on Facebook. [6] This already begins to exhibit the shift in Freed’s Facebook account from being solely personal to an account that reflects the actions of the local government.
This shift from Freed’s account being entirely personal to a mix of personal and political caused the legality of Freed’s social media actions to come into question during the Covid-19 pandemic. In 2020, Freed shared multiple posts on his Facebook in regard to the ongoing pandemic. These posts included articles about general health and safety and what Freed specifically was doing to help the citizens of Port Huron. [7] Keving Lindke, a Port Huron citizen, was particularly dissatisfied by Freed’s actions surrounding the pandemic and decided to take to Facebook to voice his frustrations. Lindke posted multiple negative and critical comments on Freed’s posts and profile. [8] This eventually caused Freed to block Lindke. Lindke then decided to sue Freed on the basis that being blocked by a public officer when the public officer was using the social media account on behalf of government actions was a violation of Lindke’s Constitutional First Amendment right to freedom of speech. [9] The Sixth Circuit court initially made a decision that ruled in favor of James Freed. However, the case was granted writ of certiorari and is in the process of being heard by the Supreme Court.
iii. Legal Rules and Court Tests
The grounds for Lindke’s legal action first need to be clarified before explaining the tests the courts employed. Lindke sued Freed under Section 1983 of Title 42 of the United States Code. This section states that if a person who is acting on behalf of the state violates a citizen’s “rights, privileges, or immunities secured by the Constitution and laws” [10], they should be held liable for their actions. By Freed blocking Lindke on his Facebook page, Lindke believed that Freed was violating his Constitutional First Amendment rights. The First Amendment protects all citizens' right to freedom of speech. [11] If Freed barred Lindke from freely voicing his opinions on Freed’s government policies, there could have been grounds for government action. An important clarification that would later come into question is whether or not Freed’s social media account was a personal one or one that reflected the local government of Port Huron. If Freed’s account was solely personal, then there would be no grounds for legal action as Title 42 only deals with actions made on behalf of the state. Lindke’s lawsuit raised the ultimate question of when and what should be regulated by the state in regard to a public official’s social media activity.
Typically, when assessing whether or not a person’s/party’s behavior is subject to state action, the court uses three tests: the public-function test, the state-compulsion test, and the nexus test. [12] The public function test evaluates if a private person or party was doing an action that typically is regarded as a state responsibility. The state-compulsion test determines if the state tried to force a private actor to commit some action, and therefore the action would be said to be done on behalf of the state. Third, the nexus test more so looks at the relationship and proximity of the private party or individual to the state. [13] The final opinion given by the Sixth Circuit court reasoned that in Freed’s case, these tests were insufficient as they typically only evaluated the actions of private individuals or parties. Evaluating Freed as a public officer required a different set of standards. Instead, the Sixth Circuit applied a test that they coined the “state-official test”, which they claimed was a part of the nexus test. In this test, the court cited Water v. City of Morristown by saying that Section 1983 is applicable to a public officer if the “state actor's conduct occurs in the course of performing an actual or apparent duty of his office, or unless the conduct is such that the actor could not have behaved as he did without the authority of his office.” [14] Essentially, to evaluate whether or not a public officer’s behaviors are subject to action under Section 1983, it needs to be established that the official was acting in pursuit of fulfilling his or her governmental role and not as an individual United States citizen. This removes some of the focus from the actual social media page and places more onto the position the individual used when posting on social media. Would Freed be able to make the same actions and use the same resources even if he were just a regular citizen? In this scenario, the court found it fair to look at James Freed’s Facebook profile as a whole and not just the individual posts made by Freed.
III. Analysis
Before analyzing whether Freed was guilty of barring Lindke’s First Amendment rights, the framework in which the case is being evaluated also needs to be analyzed. “The state-official” test provides a highly debatable rubric for what qualifies for Section 1983 action. Some scholars believe that it is a proper interpretation of the law and easily allows courts to apply the everchanging and confusing social media landscape to the more rigid standards of the law. These parties view the state-official test as being predictable, flexible, and adaptable. [15] By looking at the question, “Is the individual acting in a manner only made possible by his or her public office position?”, courts can simply determine whether or not the actor is bound to Section 1983. Other courts, however, disagree that this is a proper form of testing to determine state action or responsibility. When evaluating the Garnier v. O’Conner Ratclif case (another social media case now being brought in front of the Supreme Court), the Ninth Circuit Court of Appeals disagreed that the “state-official test” was a proper standard to evaluate whether or not individual’s social media could be considered state sanctioned. The Ninth Circuit believed that the individual should have “self-identified as a state employee…at the time of the alleged violation.” [16] This might be a more nuanced and difficult way to determine whether or not an actor was posting in a state-official position, as it still does not give specific guidelines as to what a “self-identified” state employee looks like. However, it does look at the situation more critically. Overall, the “state-official” test might not be the perfect means of evaluating Freed’s case.
Even under the framework of the “state-official” test, is it correct for the court to say that Freed was acting as an individual and not a public officer? Was Freed truly not subject to Section 1983? The court decided to observe Freed’s profile as a whole, not the individual posts and instances that resulted in Lindke being blocked. [17] In some ways, this allowed for a broader understanding of what Freed generally used his account for. He created his Facebook profile to be a personal account and largely posted things in regards to his home, not work life. Even though he changed his profile to represent his new public officer position, including even changing the contact information within his account, the court still believed Freed’s Facebook profile to be that of a private individual.
The Sixth Circuit Court was mistaken in viewing Freed’s profile as a whole rather than the specific incidents that occurred which led to Lindke’s lawsuit. By posting about his policy enactments during Covid-19, Freed was acting in the position of public officer. If Freed was not a state official, he would not be in the position to be advertising his policy regulations on social media. As an individual, Freed could have posted in support or disagreement with a different state official’s viewpoints on the pandemic. However, by posting his own policies and enactments, in this instance, Freed was taking on the role and advertising himself as a state officer. This means that Freed was not acting as a private individual and therefore he is to be held liable under Section 1983.
After evaluating the framework which was used to determine Freed’s role when blocking Lindke, the ultimate question is raised of whether or not Freed was barring Lindke’s rights to freedom of speech. The First Amendment of the United States Constitution states that “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble…” [18] In simpler terms, along with other freedoms such as freedom of religion, the United States government cannot impede on a citizen’s freedom of speech. If Freed was acting as a US government representative when posting about his Covid-19 policies on social media, as was argued above that he should be regarded as such, then he should be held liable to the rules that government officials must follow. When Freed blocked Lindke, he obstructed Lindke’s freedom of speech and freedom to voice his concerns on political matters. This would mean a government official violated a citizen’s First Amendment rights. Some categories of speech are not protected by the First Amendment. These categories typically are focused on hate or violence-inducing speech. Moreover, certain social media companies have established what type of speech is allowed to take place on their platforms. However, in Lindke’s case, although not officially disclosed in court hearings, his comments most likely would not be categorized as an unprotected form of speech as he was only commenting on government policies. If Freed was considered to be acting as a non-public official when this action took place, then blocking Lindke would not be regarded as a violation of Lindke’s rights. This is because blocking Lindke in this light would be the actions of a private citizen against another private citizen rather than the actions of the government against a citizen.
IV. Implications & Conclusion
While this case focuses on the public officer of a relatively small jurisdiction, the precedent set by its ruling will largely impact social media regulation across the country. If Freed’s actions were not subject to state regulation, what type of social media posts would qualify? As cited earlier, there have been multiple instances where public officials use their personal accounts to post potentially politically harmful and misleading information. If courts use similar evaluations to the “state-official” test used in Freed’s Sixth Circuit Court hearing, then it can be said that many of these posts would still not be subject to state action. If the courts continue to look at public figures’ social media profiles as a whole, there will always exist the argument that these accounts were primarily created for personal reasons and later ventured into the political/governmental realm. Therefore very few actions made by public officers on social media would be subject to regulation. There needs to exist a widespread standard of what social media activity counts as being subject to state regulation. The standard ultimately needs to start at properly establishing when and how an officer can be considered to be acting within state capacity when using social media. While flexible to the inherent nature of social media, the vague language in the state-official test would result in unfavorable outcomes for many who hope to see public officers’ social media accounts being regulated. Not establishing stricter guidelines for social media regulation would still allow the inflammatory, dangerous, and unproductive posts of many public officials free range.
Moreover, when a person is actively blocked from a government official’s social media account, are their freedoms truly being revoked? Many might argue that social media forums are not the proper routes for unsatisfied citizens to voice their concerns and complaints. However, the truth of the matter is that a vast majority, 70% of American adults, use social media. [19] Social media is an easily accessible way for many American adults to speak on their concerns surrounding their local and federal governance. Since these platforms serve as a means of easy communication between government officials and their constituents, citizens should not have to worry about whether their voices are going to be silenced for speaking on their issues of concern. If a social media account is defined as acting on behalf of a state official, then users should only be blocked for using hateful or unprotected categories of speech. Once again, a Michigan city manager blocking a singular local citizen does not appear to have a big impact on Freed’s governance abilities or the feelings of Port Huron’s residents. However, if this sets a precedent that allows highly powerful government officials to block any dissenting opinions posted on their social media accounts, it could have large impacts for how the American public feels about their government. Social media is not an issue to be taken lightly. It is powerful, impactful, and a major tool for social change in the modern era. Regulating state official’s accounts just as an average citizen’s would be is vital to the health of the American public and political atmosphere.
Endnotes
[1] Stop Screening Job Candidates’ Social Media. Harvard Business Review. (2021, September 2). https://hbr.org/2021/09/stop-screening-job-candidates-social-media
[2] Jeff Neal. (2023, October 27). Supreme Court takes on social media in Lindke v. freed and O’Connor-Ratclif v. Garnier. Harvard Law School. https://hls.harvard.edu/today/supreme-court-takes-on-social-media-in-lindke-v-freed-and-oconnor-ratcliff-v-garnier/
[3] Ellis v. Bank of NY Mellon Corp, 837 Fed. Appx. 940 (3rd Cir. 2021). https://plus.lexis.com/document?crid=fb3a28d1-24fc-4a4f-9daf-ab2df7eec360&pddocfullpath=%2Fshared%2Fdocu ment%2Fcases%2Furn%3AcontentItem%3A624K-FN01-JX8W-M0F1-00000-00&pdsourcegroupingtype=&pdcont entcomponentid=6387&pdmfid=1530671&pdisurlapi=true Ellis v. Bank of N.Y. Mellon Corp, 837 Fed. Appx. 940
[4] Trump, D. J. (2020, December 30). The United States had more votes than it had people voting... Twitter. https://twitter.com/realDonaldTrump/status/1344367336715857921.
[5] Lindke v. Freed 37F.4th 1199 (6th Cir. 2022). https://plus.lexis.com/document?crid=37caff5e-5024-4e34-9f76-52a84677d656&pddocfullpath=%2Fshared%2Fdo+cument%2Fcases%2Furn%3AcontentItem%3A65SY-JGS1-F528-G482-00000-00&pdsourcegroupingtype=&pdcontentcomponentid=6390&pdmfid=1530671&pdisurlapi=true&cbc=0
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] U.S. Constitution, Art. V, Sec. 1.
[10] 42 USCS § 1983, Part 1 of 16 (1979). https://plus.lexis.com/document?crid=878bc36c-b2e1-4fd6-9295-850a3e1eb2e3&pddocfullpath=%2Fshared%2Fdo%20cument%2Fstatutes-legislation%2Furn%3AcontentItem%3A8SHT-0712-D6RV-H526-00000-00&pdsourcegrouping%20type=&pdcontentcomponentid=6362&pdmfid=1530671&pdisurlapi=true
[11] U.S. Constitution, Art. V, Sec. 1.
[12] Ibid.
[13] Kiliszewski v. Camden, 1995 U.S. Dist. LEXIS 8810 (US Dis. 1995). https://plus.lexis.com/document?crid=6c056d95-d3a7-4ab0-a28f-d0496ae56b85&pddocfullpath=%2Fshared%2Fdo%20cument%2Fcases%2Furn%3AcontentItem%3A3S4N-KPW0-001T-50SS-00000-00&pdsourcegroupingtype=&pdco%20ntentcomponentid=6416&pdmfid=1530671&pdisurlapi=true
[14] Water v. City of Morristown, 242 F. 3d 353, 359 (6th Cir. 2001). https://plus.lexis.com/document?crid=df701f12-7d13-4a3b-a87e-4792ceb2a370&pddocfullpath=%2Fshared%2Fdoc%20ument%2Fcases%2Furn%3AcontentItem%3A42DP-NGY0-0038-X339-00000-00&pdsourcegroupingtype=&pdcont%20entcomponentid=6390&pdmfid=1530671&pdisurlapi=true
[15] Morgan Ryan. (2023). When Blocking Becomes Censorship: The Circuit Split on Determining When Social Media Activity is a State Action. Penn State Law Review, (289). https://plus.lexis.com/document?crid=7d966e51-2494-4910-943f-03cef48ae661&pddocfullpath=%2Fshared%2Fdoc%20ument%2Fanalytical-materials%2Furn%3AcontentItem%3A69GK-9SY1-DYRW-V0M2-00000-00&pdsourcegroupingtype=&pdcontentcomponentid=145280&pdmfid=1530671&pdisurlapi=true
[16] Garnier v. O'Connor-Ratcliff, 41 f.4th 1158 (9th Cir. 2022). https://plus.lexis.com/document?crid=d2996c4a-eae4-4689-9658-d2989d29c712&pddocfullpath=%2Fshared%2Fdo%20cument%2Fcases%2Furn%3AcontentItem%3A661B-N6X1-JWBS-6065-00000-00&pdsourcegroupingtype=&pdco%20ntentcomponentid=6393&pdmfid=1530671&pdisurlapi=true
[17] Ibid.
[18] U.S. Constitution, Art. V, Sec. 1.
[19] Morgan Ryan. (2023). When Blocking Becomes Censorship: The Circuit Split on Determining When Social Media Activity is a State Action. Penn State Law Review, (289). https://plus.lexis.com/document?crid=7d966e51-2494-4910-943f-03cef48ae661&pddocfullpath=%2Fshared%2Fdoc%20ument%2Fanalytical-materials%2Furn%3AcontentItem%3A69GK-9SY1-DYRW-V0M2-00000-00&pdsourcegroup%20ingtype=&pdcontentcomponentid=145280&pdmfid=1530671&pdisurlapi=true