April 2024 - Knowing the Waters - Social Media
By Frank Chmelik and Tim Schermetzler of CSD Attorneys at Law P.S.
In March, the United States Supreme Court issued two opinions that addressed when municipal officers can be personally liable for First Amendment violations for blocking a person from a social media account. I have set out the facts for each case in some detail to allow all of you to see if there is similar conduct by commissioners, executive directors or senior staff occurring at your port. Port districts should look at their social media policies and consider adopting a “best practice” discussed below.
Before we dive in, thanks to Jon Sitkin, Allison Beard, and Peter Ruffatto, three lawyers in our firm’s Port Practice Group, that have been tracking this issue.
The United States Supreme Court Cases. On March 15, 2024, the U.S. Supreme Court issued its decision in Lindke v. Freed[1]. James Freed was (and still is) the city manager of Port Huron, Michigan. Mr. Freed had a Facebook profile, which he eventually converted to a “public page” meaning that anyone could see and comment on his posts. Mr. Freed updated his Facebook page to reflect that he was appointed city manager of Port Huron. Mr. Freed continued to operate his Facebook page himself and continued to post primarily about his personal life. He also posted information related to his job, such as highlighting communications from other city officials and soliciting feedback from the public on issues of concern. Mr. Freed often responded to comments on his posts, including those left by city residents with inquiries about community matters. He occasionally deleted comments that he considered “derogatory” or “stupid.” Facebook user Kevin Lindke commented on some of Mr. Freed's posts, unequivocally expressing his displeasure with the city's approach to the COVID-19 pandemic. Initially, Mr. Freed deleted Lindke's comments. Eventually, Mr. Freed blocked Mr. Lindke from commenting at all. Mr. Lindke sued Mr. Freed under the federal statute 42 U.S.C. § 1983, alleging that Mr. Freed had violated his First Amendment rights seeking an injunction and damages from Mr. Freed. As Mr. Lindke saw it, he had the right to comment on Mr. Freed's Facebook page because it had become a “public forum.”
The Supreme Court issued a unanimous opinion creating a new test. Aggrieved social media users, like Mr. Lindke, must show the municipal official had both (1) actual authority to speak on behalf of the government on a particular matter and (2) that he/she purported to exercise that authority in the relevant post(s). The Supreme Court sent the case back down to the lower courts to determine if Mr. Freed was speaking personally or was speaking in his official capacity. In discussing its holding, the Court noted that:
…if Freed's account had carried a label—e.g., “this is the personal page of James R. Freed”—he would be entitled to a heavy presumption that all of his posts were personal, but Freed's page was not designated either “personal” or “official.” The ambiguity surrounding Freed's page requires a fact-specific undertaking in which posts’ content and function are the most important considerations.
On the same day, the United States Supreme Court issued a unanimous opinion in O'Connor-Ratcliff v. Garnier[2]. In 2014, Michelle O’Connor-Ratcliff and T. J. Zane created public Facebook pages to promote their campaigns for election to the Poway ( a small city in east San Diego County, California) Unified School District (“PUSD”) Board of Trustees. While O’Connor-Ratcliff and Zane (the “Trustees”) both had personal Facebook pages that they shared with friends and family, they used their public pages for campaigning and issues related to PUSD. After they won election, the Trustees continued to use their public pages to post PUSD-related content, including board-meeting recaps, application solicitations for board positions, local budget plans and surveys, and public safety updates. They also used their pages to solicit feedback and communicate with constituents. Their Facebook pages described them as “Government Official[s]” and noted their official positions. O’Connor-Ratcliff also created a public Twitter page, which she used in much the same way. Christopher and Kimberly Garnier, who have children attending PUSD schools, often criticized the board of trustees. They began posting lengthy and repetitive comments on the Trustees’ social-media posts. The Trustees initially deleted the Garniers’ comments before blocking them from commenting altogether. Like Mr. Lindke, the Garniers sued the Trustees under the federal statute 42 U.S.C. § 1983, alleging that the Trustees had violated their First Amendment rights seeking an injunction and damages from the Trustees. Here again, the Court sent the case back to the lower courts to determine if 42 U.S.C. § 1983 had been violated and instructing the lower courts to look to the new two-part test in Lindke v. Freed for guidance.
Best Practices and Mitigation of Risks. We think that several “best practices” deserve attention, especially if you recognize a fact pattern similar to the two above at your port district.
1. Port District Social Media Policy: If your port district operates an official social media account, it is the best practice to have a thoughtful and strong Social Media Policy which lays the ground rules for management of the account, establishing the account as a limited public forum, and acceptable use and commenting by third parties. Part of the agency’s social media policy should include guidance on when the agency can remove a comment or block a third party as well as disclaimer language for posting to the social media page itself. The disclaimer language should notify the public that the social media page is a limited public forum, and what constitutes prohibited behavior/commenting on the page subject to removal. As is the case with other limited public forum guidelines, the policy provisions must be viewpoint neutral and applied consistently. As noted in the Lindke case, municipalities and their employees/officials should be cognizant of the particular social media platform’s technology and methods for content removal before taking action to block anyone from a given social media page. For example, if a third party has violated the port district’s social media policy subjecting a specific comment to removal, be careful not to block the individual from the whole social media page.
2. Personal Social Media Accounts. For commissioners, executive directors and even senior managers that possess authority to communicate on behalf of their port, caution is warranted. These employees and officials should limit posts to personal, non-port-related issues, on their personal social media accounts. They should clearly label or name unofficial social media accounts as “personal.” If they feel compelled to discuss or post about their port’s business, they should be mindful that third parties may successfully argue that they have engaged in official action based on the two-part Lindke v. Freed test, which in turn may open the door to claims of Constitutional violations for improper blocking activity. At the very least port-related posts should be limited to information contained on official platforms maintained by the agency and expressly include a statement that the post is being made in the individual’s personal, non-official capacity. Finally, if a situation arises in which a post arguably was made in the official/employee’s official capacity, consideration must be taken prior to blocking comments or an individual to avoid liability.
While a great tool for keeping the public informed, posting on social media by municipalities and public employees/officials requires managing risk and avoiding pitfalls. The risks can be mitigated with the establishment of strong policies and procedures and active management by trained staff.
As always, please contact your port counsel with any questions regarding this topic. And, if you have a particular question for a Knowing the Waters, please email us at fchmelik@csdlaw.com or tschermetzler@csdlaw.com
[1] 22-611, 2024 WL 1120880 (U.S. Mar. 15, 2024)
[2] 22-324, 2024 WL 1120878 (U.S. Mar. 15, 2024)