SCOTUS narrows when officials act under color online

SCOTUS on Friday decided  when public officials can block people from their social-media pages. Lindke v. Freed (from the Sixth Circuit, a claim against a city manager) became the lead case; O'Connor-Ratcliff v. Garnier (from the Ninth Circuit, claims against school-board members) was vacated-and-remanded for reconsideration in light of Lindke.

Justice Barrett wrote Lindke for a unanimous Court, describing the standard as:

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. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.

A few thoughts:

• The court properly recognized that the question is not when a nominally private person acts under color, but when a state official engages in state action or functions as a private official. While SCOTUS has had few cases on the latter issue, it ignores the obvious analogy to off-duty officers who use the badges of authority to engage in misconduct; there is a wealth of lower-court precedent, typically (although not exclusively) involving law enforcement. The court emphasizes (and this arose a lot during argument) that public officials retain private lives and First Amendment rights when they are "off duty." The Court thus repurposes the idea that "the state-action requirement 'protects a robust sphere of individual liberty;'" rather than grounds for not subjecting private actors to constitutional liability, it limits the scope of a public official's job responsibilities., a requirement that the official have some "off-duty" time to engage in his own First Amendment activities.

• The Court takes a narrower approach to state action than I would have liked to see. The official "must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action." If maintaining and posting content to the site is not part of the official job functions and responsibilities that bind the government, the official does not act under color, no matter how much the site appears to be official. The open question is how courts apply this to sites that an elected official uses to "further" her job duties or as a "tool of governance" but which are not required by state law and not a formal part of her job duties. Perhaps custom gets there, except courts do not easily find something so persistent, permanent, and well-settled as to have practical force of law. It seems unlikely social media (10-years-old) and even web-based communications (maybe 25 years old) reach that level.

• Davison v. Loudon Cty. and Knight Foundation v. Trump--the leading cases finding state action in a public official maintaining an official or quasi-official for purposes of communicating and interacting with constituents about government business--must come out the other way. Both courts focused on the appearance and function of the activities on the site--the discussion of public content, the indicia of official status. But that is step two under Lindke. The courts now never reach that issue if the official does not have  actual authority to speak on the government's behalf about the matters at issue. For example, even on her official "chair" site, the chair of the Loudon County Board of Supervisors does not have actual authority to speak on the government's behalf about, say, a recent school-board meeting. And her web site site is not the only space in which that information appears--the city likely posted it to the government's official site. The chair uses the site to engage with constituents and keep them informed about government events as an elected official, which is not a formal part of her job on behalf of the government. Maybe the President is different, although he still lacks formal speaking authority about a lot of what he posts on social media. Along those lines, I doubt a legislator or member of a multi-member body can ever be a state actor. As individuals, they do not speak for or otherwise bind the government and are not authorized or required to speak for the government or the body. Future litigation in O'Connor-Ratcliff might tell us more--that case involves elected officials who used their campaign sites to discuss public matters after taking office.

• I think the opinion downplays the importance of engagement between the public and officials (especially elected officials) within formal official-controlled channels, even where such engagement does not bind the government and does not constitute a legally authorized or compelled part of the job. Yes, an official should be able to maintain a private site that touches on public matters, just as an official should be able to discuss public issues with friends at a barbecue. But when an official opens a site and invites the public to communicate with her about public affairs, that looks like something other than a barbecue with friends. The Court could have concluded that Freed's site is private without erecting the additional hurdle that renders many job-adjacent functions--those that "further" the job without being legally authorized--not state action.

• I will link to this Will Baude post trying to make heads or tails of the Court's odd mandate in the case--vacating the Sixth Circuit "[t]o the extent that this test differ from the one applied by the Sixth Circuit." My best guess is that this is sloppy language, reflecting that the Justices ignore (if they even grasp) the procedural nuances, the differences between judgments and opinions, etc. The Court uses more expected language-vacating and remanding for further proceedings consistent with this opinion--in O'Connor.

• The Court at one point gives us this: "'editorial control over speech and speakers on [the public employee’s] properties or platforms' is part and parcel of it. Thus, if Freed acted in his private capacity when he blocked Lindke and deleted his comments, he did not violate Lindke’s First Amendment rights—instead, he exercised his own." Is editorial control also part and parcel of Facebook's First Amendment rights and control of its site immune from government command? Or will the Court give us the farce that a government official exercises editorial control to keep citizens from speaking to them but that private entities lack the same editorial control to control who speaks on their spaces?