LM April 2024

words, a person must actually be invested with the authority to speak for the government body and appear to speak with that authority on a particular subject. The Court admitted that sometimes what constitutes state action is clear, but other times, the line between private conduct and state action is more difficult to draw. And, of course, state officials retain their own First Amendment rights to speak about their jobs as private citizens, which adds an additional level of complexity. To determine whether an official was acting in an official capacity or as a private citizen on social media, courts must look at factors like whether the account was designated as personal or official, whether individual posts expressly invoked the official’s state authority, and the immediate legal effect of the posts. Additional contextual factors like the official’s use of government staff to make posts may also be relevant in unclear cases. Obviously, this ruling by the Supreme Court has significant implications for school districts. It is without question that local school board members and school superintendents are state actors under Section 1983 as these officials wield the authority of the state. School districts and officials may feel the easiest and most direct way to connect with members of the public is through social media, especially for school board members who are up for re-election. However, school officials and school districts must proceed with caution when maintaining a presence on social media. Current law, in light of the Court’s decision in Lindke v. Freed , in no way prohibits a district’s or school official’s interaction with the public via social media. However, it most certainly prohibits the blocking or restriction of any individual from school district or school official social media accounts, even if the officials’ account is a private one—depending on how the account is utilized. While this prohibition will always apply to any official school district social media account, it will only apply to an official’s account when the official, with the authority of the state, uses that authority to speak on subjects related to their position. Updates regarding board of

education action, appeals to the public to gather its opinion on a particular subject, and posts regarding the use of snow days are examples of subjects which likely implicate the Court’s new ruling. While the Court’s ruling will certainly raise additional questions going forward, for now, to avoid liability, school public officials should stop using their personal social media accounts to speak regarding matters related to their position on the board of education or unblock or remove restrictions so all users may interact with their account. Or, an official can simply create a separate social media page for their position and post any updates there, so long as other users are not blocked or restricted from that page. School districts using social media should also ensure that no users are blocked or restricted. If a district wishes to avoid the issues related to disparaging comments or arguments, some social media has settings to turn off commenting completely for all users, effectively changing the nature of the social media account from interactive, to a simple message board for school related news and events. The district also has the option of dropping the use of social media and only utilizing its website. Most importantly, a school district should contact its attorney with any questions regarding the Court’s ruling and compliance with the law. Furthermore, it is very likely that the school district’s insurance will not cover a lawsuit like the one in Lindke v. Freed , leaving the costs of defense the sole responsibility of the school district or the individual. This alone should be enough reason for a school district and its officials to carefully consider their social media presence. Technology can be difficult to keep up with, but do not let it land your district in a lawsuit.

Patrick Simon is an attorney with

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LM April 2024