The recent Supreme Court decision in Lindke v. Freed has established a new test to determine when a public official can be considered to be engaging in state action on their social media accounts. This ruling has important implications for the intersection of First Amendment rights and social media use by public officials.

In the opinion signed by Justice Amy Coney Barrett, the Supreme Court outlined a two-part test to determine state action on social media. The official must have actual authority to speak on behalf of the state and must exercise that authority in their social media posts. This test aims to clarify when public officials can be held liable for violating citizens’ First Amendment rights on their social media pages.

Barrett emphasized the importance of distinguishing between personal and official conduct on social media. She suggested that simple disclaimers such as “this is the personal page of [official’s name]” could help establish a presumption that posts are personal rather than official. This distinction is crucial in determining whether a public official’s actions on social media constitute state action.

Katie Fallow, senior counsel of the Knight First Amendment Institute at Columbia University, praised the Court’s decision but expressed disappointment that a more practical test was not adopted. Fallow highlighted the need to balance the free speech interests of public officials with those of individuals interacting with them on social media. The Knight Institute has a history of challenging public officials over free speech issues on social media platforms.

The ruling has broader implications beyond the formal test established by the Court. Dhillon Law Group partner Gary Lawkowski noted that the decision creates a safe harbor for public officials who use disclaimers on their social media accounts. This provides a clear guideline for officials seeking to maintain the personal nature of their social media presence.

The recent Supreme Court decision on public officials and social media has significant implications for the intersection of free speech and online communication. By establishing a new test and emphasizing the importance of disclaimers, the Court has provided clarity on when public officials can be held accountable for their actions on social media. This decision marks an important development in defining the boundaries of state action in the digital age.


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