Recent Court Decisions

Public officials have the right to free speech if the speech is made as private citizens, even on mixed-use social media accounts that include both public and private speech. In a unanimous decision, the Supreme Court of the United States (Supreme Court) held that speech is public and attributable to the state 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.

Defendant-Appellee James Freed (Freed) maintained a personal Facebook page since 2008. After he was appointed city manager of Port Huron, Michigan in 2014, he continued to use his Facebook page to post about his personal life. However, he also posted information about his job, such as news about city infrastructure efforts, communications from other officials, and surveys soliciting feedback from the public. Readers frequently commented on his posts, and Freed often responded to them. Occasionally, Freed deleted comments that he thought were “derogatory” or “stupid.”

Plaintiff-Appellant Kevin Lindke (Lindke) was a citizen of Port Huron who disagreed with city policies about COVID. After Lindke made dissenting comments on several of Freed’s posts, Freed deleted the comments and blocked Lindke. Lindke sued, alleging that Freed’s actions constituted state action that infringed on his First Amendment rights.

First, the Supreme Court held that an official’s social media posts can only be public speech if it is part of the official’s duties, whether express or implied. The Court noted that the state could not “fairly be blamed” for the official’s speech if the official had no authority to speak on behalf of the state.

Second, the Court held that an official’s speech can only be public if the official invokes their authority by speaking in their official capacity or using the speech to fulfill their responsibilities. A school board president’s announcement about lifting pandemic-era restrictions on public schools is public speech because he invokes his official authority as the school board president. In contrast, sharing the same information at a backyard barbeque is private speech because he is not exercising his authority.

The Court noted that Freed’s Facebook page was “mixed use” containing both posts made in his personal capacity and posts made in his capacity as city manager. However, the Court noted that officials do not necessarily invoke their authority simply by posting job-related information and that officials have the right to speak about public affairs in their personal capacities. The determination must be made by considering both the content and function of each post.

Finally, the Court noted that because Facebook blocking operates on an entire page and therefore prevents Lindke from commenting on any post on the page, all posts must be considered when determining whether Freed blocking Lindke was state action. The Court warned that a public official who fails to keep personal posts in a clearly designated personal account exposes themself to greater potential liability.

The Supreme Court vacated the lower court’s judgment and remanded the case for further proceedings.

Michelle Yang, IASB Law Clerk

Parents Protecting Our Children (Plaintiffs), an association of parents, sought an injunction against the Eau Claire Area School District in Wisconsin (District) to stop the enforcement of the District’s Administrative Guidance for Gender Identity Support (Administrative Guidance). Plaintiffs argued that the Administrative Guidance violated the Due Process and Free Exercise Clauses of the U.S. Constitution by interfering with their right to make decisions on behalf of their children.

The District’s Administrative Guidance envisioned that either students or parents may contact school officials with questions, concerns, or requests bearing on matters of student gender identity, and acknowledged the delicacy and sensitivity of such matters. It also noted the possibility that students “may not be ‘open’ at home for reasons that may include safety concerns or lack of acceptance” and, for that reason, it instructed school personnel to speak with a gender non-conforming student first before discussing the student’s gender identity with the student’s parents.

The United States District Court for the Western District of Wisconsin dismissed the case due to lack of subject matter jurisdiction, stating that Plaintiffs failed to identify any instance where the Administrative Guidance was applied in a way that infringed on parental rights.

The Seventh Circuit affirmed the District Court’s ruling and held that Plaintiffs’ concerns about potential applications of the Administrative Guidance did not establish standing to sue unless the Administrative Guidance resulted in an injury or created an imminent risk of injury. The Seventh Circuit stated that Plaintiffs had brought a pre-enforcement facial challenge against the Administrative Guidance without any evidence of the District applying it in a manner detrimental to parental rights.

The Seventh Circuit also noted that the Administrative Guidance did not mandate exclusion of parents from discussions or decisions regarding a student’s gender expression at school. Since Plaintiffs’ alleged harm was dependent on a speculative “chain of possibilities,” which was insufficient to establish standing, the Seventh Circuit upheld the dismissal of the lawsuit for lack of subject matter jurisdiction.

Mary Bandstra, IASB Law Clerk