Supreme Court takes on Facebook censorship and political speech

One of the anomalies in our constitutional system is that the courts have to solve modern-day problems by applying language that the constitutional framers adopted in 1791. In this case, the Supreme Court had to decide when the First Amendment bars a public official from censoring his private Facebook page. The Court provides an answer by creating a multi-part test drawn from state-action cases that the Court has issued over the decades.

The case is Lindke v. Freed, issued by the Court on March 15. Freed was city manager for the City of Port Huron, Michigan, who created a Facebook page for himself more than 15 years ago. That page includes personal postings about family, friends, his dog, bible verses, etc. But since he was also a public official, he posted stuff about the City, and constituents wrote comments that he sometimes deleted because they were "derogatory" or "stupid." One constituent was Lindke, who criticized how the City dealt with the COVID pandemic. Freed blocked Lindke, who in turn sued Freed, and the case winds up in the Supreme Court because the Supreme Court has to issue guidance on new issue. The framers never could have anticipated an issue like this, but there is a speech component to a case like this so the Court tries to bring this case within its existing standards in comparable speech cases.

What makes this a potential constitutional claim is that Freed is a public official. Normally, public officials cannot silence their critics; that would invite a First Amendment challenge. The problem here is that Freed silenced Lindke on his private Facebook page that also addresses public matters. 

The Supreme Court devises the following test, drawing from prior state action cases. The first thing the censored plaintiff must show is that the public official had actual authority rooted in written law or longstanding custom to speak for the government. "That authority must extend to speech of the sort that caused the alleged rights deprivation." But if the public employee does not use his speech in furtherance of his official responsibilities, he is speaking in his own voice" and cannot be sued under the First Amendment. The Court gives a few examples of his this might play out:

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 “con- cern[ing] information learned during that employment.”

But these are hypotheticals. The Court makes clear that this is a face-specific inquiry that will depend on the case. Cases involving problems that no one anticipated 20 years ago are not easy to resolve, and I am sure this case is just the beginning of social media censorship rulings from the Supreme Court.