On March 15, 2024, the US Supreme Court ruled unanimously that a public official who prevents someone from commenting on the official’ s social media page (e.g. blocking the person or deleting their comments) could potentially be liable for a free speech violation. This applies to elected officials and various government employees depending on their authority.
Liability can occur if the public official both (1) possessed actual authority to speak on the government’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social-media posts.
When social media profiles appear ambiguous regarding whether they are personal or official, a fact-specific inquiry will be required regarding a specific post’s content and function when a comment is deleted. The Court provided the following examples:
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.”
Lindke v. Freed, Opinion pages 13-14.
When a public official blocks someone entirely from their social media page there can be a free speech violation if any post on their entire social media profile is an official communication on which the complaining person wanted to comment. This decision will likely result in numerous cases in the future further clarifying the many nuances and open questions in this case.
The Court concluded by noting that “A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.”