In a new test announced by the U.S. Supreme Court, public officials who censor their critics on social media only violate the First Amendment if the public official: (1) possessed actual authority to speak on the state’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social media posts. “Much of the litigation will now focus on the first part of the test,” according to Clinical Assistant Professor & First Amendment Clinic Director Clare R. Norins. “There will likely not be a clear-cut answer in many cases given that an official’s authority to speak on behalf of the state can be established not only by a ‘statute, ordinance, [or] regulation’ but also by ‘custom or usage.’ It will be left to the trial courts to decide how ‘custom or usage’ will be interpreted and applied in this context.”
University of Georgia School of Law Clinical Assistant Professor & First Amendment Clinic Director Clare R. Norins, who has approximately 20 years of civil rights experience in private practice, government enforcement and higher education, is available for further commentary at cnorins@uga.edu.
Additional information regarding the U.S. Supreme Court Lindke v. Freed opinion by Norins:
On March 15, 2024, the U.S. Supreme Court unanimously held in Lindke v. Freed that public officials who use their personal social media accounts to speak for the government violate the First Amendment if they block someone or delete their comment for responding critically to that speech. The decision, written by Justice Amy Coney Barrett, resolved a circuit split over what test should be used to determine if the public official is posting on the account in their official capacity (in which case the First Amendment applies) or in their private capacity (in which case the First Amendment does not apply). The new test announced by the court requires the person asserting a First Amendment violation to show that the public official who censored them from commenting: (1) possessed actual authority to speak on the state’s behalf on a particular matter, and (2) purported to exercise that authority when speaking in the relevant social media posts. The court announced that the application of this test will be fact-intensive and that public officials expose themselves to greater potential for violating the First Amendment if they use their own social media account for both official and personal posts. Much of the litigation in these social-media-blocking cases will now focus on the first part of the new test – whether the public official had authority to speak on the state’s behalf. There will likely not be a clear-cut answer in many cases given that an official’s authority to speak can be established not only by a “statute, ordinance, [or] regulation” but also by “custom or usage.” It will be left to the trial courts to decide how “custom or usage” will be interpreted and applied in this context.