Can a public official delete users’ comments and block them from the official’s social media account?

Answer

The Supreme Court has addressed the issue of removal or blocking from public officials’ social media pages. Lindke v. Freed, 601 U.S. 187, 190–91 (2024). As the Court discussed, the threshold issue is whether a person acts under color of state law by blocking someone from a social media page, because while “public officials can act on behalf of the State, they are also private citizens with their own constitutional rights” to free expression. Id. at 196.

Generally, the First Amendment only applies to acts taken under color of law, not acts by a private person or acts in a public official’s private capacity. In Lindke, the Supreme Court used “a hypothetical from the offline world” to illustrate this point: “A school board president announces at a school board meeting that the board has lifted pandemic-era restrictions on public schools. The next evening, at a backyard barbecue with friends whose children attend public schools, he shares that the board has lifted the pandemic-era restrictions. The former is state action taken in his official capacity as school board president; the latter is private action taken in his personal capacity as a friend and neighbor.” Id. at 201–02. Because of the difficulties in distinguishing personal and official communications online, a “close look is definitely necessary in the context of a public official using social media.” Id. at 197. 

To that end, the Supreme Court held that the following test applies: “a public official’s social-media activity constitutes state action under § 1983 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.” Id. at 198.

To satisfy the first prong, a plaintiff “must show more than that [the government official] had some authority to communicate” on behalf of the government entity, but rather the “alleged censorship must be connected to speech on a matter within [the official’s] bailiwick” or official “portfolio” of responsibilities. Id. at 187–88. The official’s power can derive from any “statute, ordinance, regulation, custom, or usage.” Id. at 200. “‘Custom’ and ‘usage’ encompass ‘persistent practices of state officials’ that are ‘so permanent and well settled’ that they carry ‘the force of law.’” Id. (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 167–68 (1970)). 

For example, where an official blocked a constituent from a page where the official posts city announcements and communicates with the public, the official “would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements” or if, for instance, prior officials in the same position “have purported to speak on its behalf and have been recognized to have that authority for so long that the [official’s] power to do so has become ‘permanent and well settled.’” Id. “And if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.” Id. 

“The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the State entrusted the official to do.” Id. at 201.

Thus, the key inquiry on this prong would be whether the official in question holds the authority to speak on behalf of the state under any “statute, ordinance, regulation, custom, or usage.”

With respect to the second prong of the test, generally, “‘a public employee’ purports to speak on behalf of the State while speaking ‘in his official capacity or’ when he uses his speech to fulfill ‘his responsibilities pursuant to state law.’” Id. (quoting West v. Atkins, 487 U.S. 42, 50 (1988)).

If an official’s social-media account carries “a label (e.g., ‘this is the personal page of [Official’s Name]’) or a disclaimer (e.g., ‘the views expressed are strictly my own’), he would be entitled to a heavy (though not irrebuttable) presumption that all of the posts on his page were personal.” Id. at 202. “Conversely, context can make clear that a social-media account purports to speak for the government—for instance, when an account belongs to a political subdivision (e.g., a ‘City of …’ Facebook page) or is passed down to whomever occupies a particular office (e.g., an ‘@[ ]CityMgr’ Instagram account).” Id. 

With respect to an official’s social-media account that does not carry such a label or disclaimer, “[c]ategorizing posts that appear on an ambiguous page . . . is a fact-specific undertaking in which the post’s content and function are the most important considerations.” Id. at 203. 

While this is a fact-specific inquiry that would depend on the circumstances of each case, the Supreme Court illustrated the distinction using the following example: 

In some circumstances, the post’s content and function might make the plaintiff’s argument a slam dunk. Take a mayor who makes the following announcement exclusively on his Facebook page: “Pursuant to Municipal Ordinance 22.1, I am temporarily suspending enforcement of alternate-side parking rules.” The post’s express invocation of state authority, its immediate legal effect, and the fact that the order is not available elsewhere make clear that the mayor is purporting to discharge an official duty. If, by contrast, the mayor merely repeats or shares otherwise available information—for example, by linking to the parking announcement on the city’s webpage—it is far less likely that he is purporting to exercise the power of his office. Instead, it is much more likely that he is engaging in private speech ‘relate[d] to his public employment’ or ‘concern[ing] information learned during that employment.’

Id. (quoting Lane v. Franks, 573 U.S. 228, 238 (2014)). 

Additionally, the “nature of the technology matters to the state-action analysis.” Id. at 204. For example, when an official deletes a person’s comments from individual posts “the only relevant posts” for the two-prong analysis “are those from which . . . comments were removed.” Id.

“Blocking, however, is a different story.” Id. “Because blocking operate[s] on a page-wide basis, a court would have to consider whether [the official] had engaged in state action with respect to any post on which [the plaintiff] wished to comment.” Id. (emphasis added). Thus, “[i]f page-wide blocking is the only option, a public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts.” Id.

To the extent officials are exercising their right to free speech on a personal account, “‘editorial control over speech and speakers on [the public employee’s] properties or platforms’ is part and parcel of” that right. Id. at 7–8 (alteration in original) (quoting Manhattan Community Access Corp. v. Halleck, 587 U.S. 802, 816 (2019)). 

If the First Amendment is implicated by a public official’s or agency’s use of social media, for example when it is clear that the social media account is operated on behalf of the government, the extent to which the official or agency may regulate public comments generally depends on the type of forum at issue. 

The Ninth Circuit has noted that a public agency’s social media page may be a designated or limited public forum. When “the government has made a forum available for use by the public and has no policy or practice of regulating the content posted to that forum, it has created a designated public forum.” Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1179 (9th Cir. 2022), vacated on other grounds, 601 U.S. 2025 (2024) (citations and quotation marks omitted). When the government exercises “clear and consistent control” in both policy and practice over a social media page, it has generally created a “limited public forum.” Id. (citations & quotation marks omitted).

“In a designated public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech,” which must generally be content neutral, “provided the restrictions are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information.” Id. at 1177-78 (citations & quotation marks omitted). “In a limited public forum, restrictions on speech and speakers are permissible so long as they are viewpoint neutral and reasonable in light of the purpose served by the forum.” Id. at 1178 (citations & quotation marks omitted).

In a limited public forum, speech may generally be limited to “certain topics,” without discrimination based on viewpoint about those topics. Id. “The [s]tandards for inclusion and exclusion for a limited public forum must be unambiguous and definite; without objective standards, government officials may use their discretion … as a pretext for censorship.” Id. (citations & quotation marks omitted). Rules that allow unbridled discretion to censor speech are generally invalid because they create an unacceptable risk of viewpoint discrimination. Kaahumanu v. Hawaii, 682 F.3d 789, 807 (9th Cir. 2012).

Thus, if there is state action underlying a page-wide blocking under the two-prong Lindke test and there is evidence of viewpoint discrimination, then there could be a First Amendment violation. As mentioned, these are highly fact-specific inquiries that depend on the precise circumstances, so it is difficult to determine whether you might have a viable claim or not.