LM April 2024

The New Town Square: The Supreme Court’s Ruling on Social Media and First Amendment Rights

Throughout the history of the Unites States, the advance of technology has without a doubt had a profound impact on our culture, democracy, and the very existence of the nation itself. For example, the nation pushed westward with the locomotive, sparking powerful debate on the issue of slavery and ultimately ignited the Civil War. More recently, many political experts point to John F. Kennedy’s candid presence on television as one reason for his win over Richard Nixon. However, arguably the most dramatic change to the American way of life in generations is the rise of social media. Not only has social media impacted our culture and interpersonal relationships but has had a profound impact on the way American’s participate in their democracy. Whether social media’s influence on the county has been good is situational, to say the least. Social media has made our elected representatives and government institutions more accessible and scrutinized than ever before, but conspiracy and mistruths are allowed to spread like wildfire. Social media has an amazing capacity to connect the people to their government, but it also raises questions about how the technology fits within established legal and democratic principles. As often is the case, the law has taken some time to catch up to the technology. While many Americans adopted social media over 15 years ago, the United States Supreme Court has recently addressed the technology within the context of the First Amendment—which turns 235 years old this year. In the case Lindke v. Freed , the Court addressed whether a public official’s social media activity constitutes state action under 42 U.S.C. 1983 and is subject to the First Amendment. Section 1983 is a federal law that allows an individual to bring a lawsuit against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ” deprives that individual of a federal constitutional or statutory right. [Emphasis added]. As the text of the statute provides, this provision protects against acts attributable to a State, not those of a private person. By Patrick Simon Tueth Keeney Cooper Mohan Jackstadt PC

Specifically, the Court reviewed whether an official’s action of “blocking” a citizen from the official’s social medial account was state action, rather than action of a private citizen. In other words, the Court answered the question of whether a citizen’s First Amendment rights are protected when interacting with a public official’s Twitter, Facebook, or other social media account and whether being “blocked” from the account could violate a citizen’s right to free speech. In Lindke v. Freed , James Freed, the Defendant in the case, was a city manager for a city in Michigan who used his Facebook account for both his personal social updates and to share information related to his public role as city manager. Mr. Freed shared a wide variety of public information related to his role as city manager on his Facebook page. Specifically addressed in this case, was the information he shared regarding COVID-19 and the city’s policies addressing the pandemic private or public speech. Kevin Lindke, the Plaintiff, did not approve of Mr. Freed’s handling of the pandemic and made comments critical of Freed on Freed’s Facebook page. As a result of some of these comments, many of which were repetitive and lacked respectful decorum, Mr. Freed blocked Mr. Lindke from commenting on his Facebook posts. After being blocked, Mr. Lindke sued Mr. Freed under Section 1983 alleging that his rights under the First Amendment were violated because he was restricted from commenting on Mr. Freed’s Facebook page. The Court clarified that for Mr. Freed’s act of blocking Mr. Lindke to be a violation of Mr. Lindke’s First Amendment rights, Mr. Freed must have been acting in his role as a public official, engaging in state action, and not as a private citizen as required by Section 1983. The Court stated that a public official who prevents someone from commenting on the official’s social media page engages in state action only if the official actually had the authority to speak on the State’s behalf on a particular matter and claimed to exercise that authority when speaking in the social media post. In other

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LM April 2024