by Michael Barbella
From its earliest days, social media has created significant legal challenges for America’s judicial system. Numerous cases involving digital networks have been brought before the courts seeking clarification on how the First Amendment, which guarantees the freedom of speech, applies to online forums.
In recent years, state and federal courts have addressed legal questions about censorship, content, and the government’s role in regulating social media platforms. The U.S. Supreme Court has addressed these matters as well. For example, a March 2024 ruling from the Court examined whether public officials can lawfully block critics on social media. The U.S. Supreme Court decision stemmed from two cases—Lindke v. Freed and O’Connor-Ratcliff v. Garnier—where residents’ digital comments were shut down by local government representatives.
The U.S. Supreme Court’s ruling said that public officials must follow First Amendment rules in certain cases. The deciding factor, according to the Court, would be whether an official’s social media post amounts to government business, also known as “state action,” or whether the post was private in nature. The state action doctrine is a legal principle which holds that the U.S. Constitution can only restrict government actors, not private individuals or organizations. That means that in order to prove a constitutional violation, a plaintiff must show that the government was responsible.
“Sometimes…the line between private conduct and state action is difficult to draw,” Justice Amy Coney Barrett wrote in the U.S. Supreme Court’s unanimous opinion. “When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. Categorizing conduct, therefore, can require a close look.”
The Court established a two-prong test to determine whether a public official’s social media activity constitutes state action or private speech. The Court said, “a public official’s social media activity constitutes state action only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” Both factors must be present in order to claim a First Amendment violation, the Court concluded.
At the center of both Lindke v. Freed and O’Connor-Ratcliff v. Garnier is the purpose behind social media posts. As Justice Barrett noted, “There are approximately 20 million state and local government employees across the nation, with an extraordinarily wide range of job descriptions…Many use social media for personal communication, official communication, or both—and the line between the two is often blurred.”
Although the U.S. Supreme Court established new guidelines for determining when personal social media accounts become official, it did not apply the rules to the two cases in question. Instead, the Court remanded both cases to the lower courts to apply the new test and issue another ruling.
About Lindke v. Freed
This case involved James R. Freed, the city manager of Port Huron, Michigan. According to court documents, Freed created a private Facebook page as a college student but switched his profile to a public page when he came close to reaching the platform’s 5,000 friend limit. He updated his Facebook page after becoming city manager in 2014, and continued to post content about his personal life, for example, photos of a Daddy-Daughter Dance, dinner with his wife, a family nature walk, home improvement project photos as well as pictures of his dog.
In addition to personal content, Freed also posted job-related matters on his Facebook page such as high school visits, a boat launch reconstruction, news about leaf pickups, and efforts to stabilize water intake from a local river. Members of the public regularly commented on Freed’s posts, and he frequently replied, sometimes answering residents’ questions. Occasionally, according to the U.S. Supreme Court’s opinion, Freed deleted comments he thought were “derogatory” or “stupid.”
During the COVID-19 pandemic, Freed’s Facebook page contained a mix of personal posts (family photos), general information (case count and weekly hospitalization numbers), and job-related matters (news of the city’s hiring freeze and a relief package he helped prepare).
Facebook user Kevin Lindke—unhappy with Port Huron’s pandemic response—frequently commented on Freed’s posts, once calling local disease control efforts “abysmal” and saying “the city deserves better.” Lindke complained that city leaders were letting residents suffer after a Facebook photo showed Freed and the mayor picking up takeout meals.
At first, Freed just deleted Lindke’s comments but ultimately, he blocked him from his Facebook page. Lindke sued Freed in federal district court, claiming the city manager violated his First Amendment rights. Freed argued that his Facebook account was personal and he created his posts as a private citizen.
The U.S. District Court for the Eastern District of Michigan and the U.S. Court of Appeals for the Sixth Circuit both sided with Freed, ruling that his actions in blocking Lindke did not constitute “state action.”
The U.S. Supreme Court acknowledged that Freed’s Facebook page gave mixed messages saying Freed “posted prolifically (and primarily) about his personal life” but also posted about work.
“For his profile picture, Freed chose a photo of himself in a suit with a city lapel pin,” Justice Barrett wrote. “In the ‘about’ section, Freed added his title, a link to the city’s website and the city’s general email address. He described himself as ‘Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron.’”
While the Court did not rule on the merits of the case, Justice Barrett included in her opinion some relevant suggestions for courts to consider.
For example, she contended that if “Freed’s account carried a label (e.g., ‘this is the personal page of James R. Freed’) or a disclaimer (e.g., ‘the views expressed are strictly my own’)” that would create a presumption that his posts were personal. If, however, Freed used terms like “immediate legal effect” or invoked state authority, or used government resources (such as having a staff member create the post), Justice Barrett said it would create a presumption that the posts were made in his official capacity.
Still, in the Court’s opinion, Justice Barrett noted that public officials have constitutional rights, too. “The First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern,” she wrote.
At press time, the U.S. Court of Appeals for the Sixth Circuit where the case was remanded, has not ruled in Lindke using the U.S. Supreme Court’s two-prong test.
About O’Connor-Ratcliff v. Garnier
The case of O’Connor-Ratcliff v. Garnier centered around the Facebook and Twitter accounts of two school board members—Michelle O’Connor-Ratcliff and T.J. Zane—from the Poway Unified School District, located just outside of San Diego. Once elected as trustees of the school board, the pair updated their personal Facebook and Twitter accounts with their official titles and used those social media accounts to communicate with constituents about school board activities, public meetings, school safety and also sought feedback.
Christopher and Kimberly Garnier, parents of children in the Poway School District, were often critical of the district’s Board of Trustees and posted on the pages of both O’Connor-Ratcliff and Zane. Eventually, O’Connor-Ratcliff and Zane blocked the couple from their social media accounts. The Garniers sued, arguing that the pages were a public forum and claimed that blocking them was a violation of their First Amendment rights.
The U.S. District Court for the Southern District of California found in the Garnier’s favor, determining that the trustees’ social media pages were designated public forums and blocking them violated their First Amendment rights. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court’s decision.
In light of the U.S. Supreme Court’s ruling in Lindke, the case was remanded to the Ninth Circuit. In May 2025, the Ninth Circuit again ruled on the case.
“We hold that O’Connor-Ratcliff’s blocking of the Garniers on her social media accounts constituted state action under Lindke,” the Ninth Circuit Court’s decision said. “For that reason—as well as those articulated in our earlier opinion and not challenged by the Supreme Court—we affirm the judgment of the district court as to O’Connor-Ratcliff. Because Zane is no longer a public official, we remand the claim against him to the district court with instructions to dismiss him from the case as moot.”
A previous case
The Lindke and O’Connor-Ratcliff cases forced the Court to re-examine how the First Amendment applies to social media. The Court previously faced this issue in President Donald J. Trump’s first term when the Knight First Amendment Institute at Columbia University sued the President in federal court on behalf of seven citizens who were blocked from his Twitter (now called X) account because they were critical of the president.
In May 2018, Judge Naomi Reice Buchwald, of the U.S. District Court for the Southern District of New York, reasoned that the president’s account was a “designated public forum” and that blocking users based on viewpoint was unconstitutional, violating the First Amendment. In July 2019, the U.S. Court of Appeals for the Second Circuit affirmed the district court’s decision.
The Trump administration appealed the Second Circuit’s decision to the U.S. Supreme Court in August 2020. After President Trump’s loss in the 2020 election, the U.S. Supreme Court vacated the Second Circuit’s ruling in April 2021, declaring it moot.
Justice Clarence Thomas issued an opinion at the time where he acknowledged that “some of aspects of Mr. Trump’s account resemble a constitutionally protected public forum” but also said the case “highlights the principal legal difficulty that surrounds digital platforms—namely that applying old doctrines to new digital platforms is rarely straightforward.”
Discussion Questions
- What do you think the issues brought up in both cases say about the power of social media in our everyday lives?
- In light of the U.S. Supreme Court’s two-prong test how would you rule in the Lindke case? Explain your answer.
Glossary Words
affirm—to uphold, approve or confirm.
appeal—a complaint to a higher court regarding the decision of a lower court.
moot—a legal issue that has lost its practical significance.
plaintiff—person or persons bringing a civil lawsuit against another person or entity.
remand—to send a case back to a lower court.
vacate—to set aside or cancel.
This article originally appeared in the spring 2026 issue of The Legal Eagle.