Amicus Curiae Brief — Kevin Lindke, Petitioner v. James R. Freed

Supreme Court briefJun 30, 2023

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No. 22-611

In The

Supreme Court of the United States

KEVIN LINDKE,

Petitioner,

JAMES R. FREED,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE

FOUNDATION FOR INDIVIDUAL RIGHTS

AND EXPRESSION

IN SUPPORT OF PETITIONER

KELLEY BREGENZER

FOUNDATION FOR

INDIVIDUAL RIGHTS AND

EXPRESSION

510 Walnut St.

Suite 1250

Philadelphia, PA 19106

ROBERT CORN-REVERE

Counsel of Record

FOUNDATION FOR

INDIVIDUAL RIGHTS AND

EXPRESSION

700 Pennsylvania Ave. SE

Suite 340

Washington, DC 20003

(215) 717-3473

bob.corn-revere@thefire.org

Counsel for Amicus Curiae

QUESTION PRESENTED

Whether a public official’s social media activity can

constitute state action only if the official used the

account to perform a governmental duty or under the

authority of his or her office.

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

TABLE OF AUTHORITIES.......................................iv

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION ........................................................2

SUMMARY OF ARGUMENT .....................................4

ARGUMENT ...............................................................7

I. The Constitution Should Not Permit

Government Officials to Use Social Media as

a Tool to Limit Public Discourse. ..........................7

A. Public officials increasingly reap the

benefits of interactive communications

media. ................................................................ 7

B. Public officials too often succumb to the

temptation to silence critics. .......................... 13

C. Government officials can’t have it both

ways when they use social media. ................. 16

II. Public Officials Engage in State Action When

They Use Social Media Accounts to Conduct

Public Business. ................................................... 17

A. The key issue is whether personal

accounts are used as tools of governance. ..... 17

iii

B. The First Amendment prohibits viewpoint

discrimination on social media sites used

to conduct public business. ............................. 20

C. The Sixth Circuit’s “actual or apparent

official duties” test is too narrow. .................. 23

CONCLUSION .......................................................... 26

TABLE OF AUTHORITIES

Cases

Page(s)

Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n,

531 U.S. 288 (2001) .......................................... 19, 24

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021).................. 3, 18, 19, 25

Counterman v. Colorado,

No. 22-138 (June 27, 2023) ...................................... 3

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019)............ 3, 20, 21, 22, 25

Doe v. Reed,

561 U.S. 186 (2010) ................................................ 16

Fasking v. Merrill,

No. 2:18-cv-809-JTA, 2023 WL 149048

(M.D. Ala. Jan. 10, 2023) ....................................... 14

Garcetti v. Ceballos,

547 U.S. 410 (2006) ...................................... 5, 18, 21

Garnier v. O’Connor-Ratcliff,

41 F.4th 1158 (9th Cir. 2022) ...................... 3, 20, 21

Garrison v. Louisiana,

379 U.S. 64 (1964) .................................................... 6

Iancu v. Brunetti,

139 S. Ct. 2294 (2019)............................................ 23

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) .......................................... 19, 24

Knight First Amend. Inst. v. Trump,

928 F.3d 226

(2d Cir. 2019) ........... 3, 10, 11, 20, 21, 22, 23, 25, 26

Lindke v. Freed,

37 F.4th 1199

(6th Cir. 2022) ........................ 3, 8, 13, 16, 18, 23, 24

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) ........................................ 5, 6, 19

Martinez v. Colon,

54 F.3d 980 (1st Cir. 1995) .................................... 19

Matal v. Tam,

582 U.S. 218 (2017) ................................................ 22

N.Y. Times v. Sullivan,

376 U.S. 254 (1964) ...................................... 6, 16, 26

One Wis. Now v. Kremer,

354 F. Supp. 3d 940

(W.D. Wis. 2019) .................................... 5, 15, 17, 21

Packingham v. North Carolina,

582 U.S. 98 (2017) ................................ 2, 3, 6, 21, 26

Perry Educ. Ass’n v. Perry Local Educators’

Ass’n, 460 U.S. 37 (1983) ....................................... 22

Reno v. ACLU,

521 U.S. 844 (1997) .................................................. 2

Rosenberger v. Rector & Visitors of the Univ.

of Va., 515 U.S. 819 (1995). ................................... 23

Rossignol v. Voorhaar,

316 F.3d 516 (4th Cir. 2003).................................. 19

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975) ................................................ 23

Skinner v. Ry. Lab. Execs. Ass’n.,

489 U.S. 602 (1989) ................................................ 19

West v. Adkins,

487 U.S. 42 (1988) .................................................. 18

Other Authorities

Bradford Fitch & Kathy Goldschmidt,

#SocialCongress 2015, Cong. Mgmt.

Found. 10 (2015) ...................................................... 9

Charlie Savage, Trump Can’t Block Critics

From His Twitter Account, Appeals Court

Rules, N.Y. Times (July 9, 2019) ........................... 13

Found. for Individual Rts. & Expression, No

Comment: Public Universities’ Social

Media Use and the First Amendment (Apr.

22, 2020) ........................................................... 15, 16

Found. for Individual Rts. & Expression, The

New York State Senate Blocks Critics on

Twitter. That’s Unconstitutional—and

FIRE Calls on the Senate to Knock It Off,

(Aug. 18, 2022) ......................................................... 2

vii

Governors’ Social Media Accounts, Nat’l

Governors Ass’n ..................................................... 10

Has Florida Man Finally Met His Match?

Meet Florida Sheriff, Bay News 9 (July 26,

2022) ......................................................................... 7

Jacob R. Straus, Social Media Adoption by

Members of Congress: Trends and

Congressional Considerations, R45337,

Cong. Rsch. Serv. 1 (Oct. 2018) ............................... 9

Jon Brodkin, Republican governor forced to

stop blocking Facebook users who criticize

him, Ars Technica (April 3, 2018) ......................... 14

Ovetta Wiggins and Fenit Nirappil, Gov.

Hogan’s Office has blocked 450 people from

his Facebook page in two years,

Washington Post (Feb. 8, 2017) ............................ 14

Patrick Van Kessel et al., Congress Soars to

New Heights on Social Media (July 16,

2020) ....................................................................... 12

Paulina Firozi, Politicians fill social media

with Christmas messages, The Hill (Dec.

26, 2016) ................................................................. 10

Sasha Ingber, Alexandria Ocasio-Cortez Is

Sued Over Blocking Twitter Followers,

NPR (July 12, 2019) ............................................... 14

Scott Thistle, Settlement ends blocking of

critical comments on pro-LePage Facebook

viii

page, Portland Press Herald (Dec. 10,

2018) ....................................................................... 15

U.S. Digital Registry, Digital.Gov ............................ 10

Zacc Ritter, Americans Use Social Media for

COVID-19 Info, Connection, Gallup News

(May 21, 2020) ......................................................... 9

INTEREST OF AMICUS CURIAE1

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the most essential qualities of liberty. Since

1999, FIRE has successfully defended the rights of

individuals through public advocacy, strategic

litigation, and participation as amicus curiae in cases

that implicate expressive rights under the First

Amendment. See, e.g., Brief of FIRE as Amicus Curiae

in Support of Petitioner, Kennedy v. Bremerton Sch.

Dist., 142 S. Ct. 2407 (2022); Brief of FIRE as Amicus

Curiae in Support of Respondents, Mahanoy Area

Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021).

FIRE regularly defends speakers whose

expression has been censored by governmental social

media accounts. For example, after Wright State

University censored student and faculty supporters of

a January 2019 faculty strike by hiding and removing

comments from its official Facebook account, FIRE

successfully advocated for a change to the university’s

social media policy. See Found. for Individual Rts. &

Expression, Wright State University: Facebook

Comments Restricted During Faculty Union

Strike, https://perma.cc/6F8S-WQ5T. And FIRE’s

research demonstrates the extent of the problem.

FIRE has collected and reported on public records

from over 200 state colleges and universities,

1 Pursuant to Rule 37.6, amicus affirms that no counsel for a

party authored this brief in whole or in part, and that no person

other than amicus or its counsel contributed money intended to

fund preparing or submitting this brief.

demonstrating that these public institutions widely

use blocking and keyword-filtering tools on social

media sites that constitute public forums for speech.

See Found. for Individual Rts. & Expression, No

Comment: Public Universities’ Social Media Use and

the

First

Amendment,

(Apr.

22,

2020), https://perma.cc/3G4E-86WY (“No Comment”).

In June 2022, FIRE expanded its public advocacy

promoting a culture of free expression and its

litigation efforts to protect First Amendment rights

beyond the university setting to include society at

large. See Found. for Individual Rts. & Expression,

The New York State Senate Blocks Critics on Twitter.

That’s Unconstitutional—and FIRE Calls on the

Senate to Knock It Off, (Aug. 18, 2022),

https://perma.cc/6NC2-7GEH. FIRE files this brief in

support of Petitioner to urge the Court to put public

officials on notice: The First Amendment’s protections

cannot be “blocked” when critical constituents log on.

INTRODUCTION

From its first opportunity to consider the issue,

this Court has recognized the Internet as “a unique

and wholly new medium of worldwide human

communication” that disseminates content “as diverse

as human thought.” Reno v. ACLU, 521 U.S. 844, 850,

852 (1997). The vital First Amendment interests

inherent in this medium have only increased over

time. Two decades after Reno, the Court observed that

cyberspace, and “social media in particular,” have

become “the most important places . . . for the

exchange of views.” Packingham v. North Carolina,

582 U.S. 98, 104 (2017). This is because “[s]ocial

media offers ‘relatively unlimited, low-cost capacity

for communication of all kinds,” where “users can

debate religion and politics” or “petition their elected

representatives and otherwise engage with them in a

direct manner.” Id. at 104–05. See also Counterman v.

Colorado, No. 22-138, at *5 (June 27, 2023)

(Sotomayor, J., concurring) (“Our society’s discourse

occurs more and more in the ‘vast democratic forums

of the Internet’ in general, and social media in

particular.”) (quoting Packingham, 582 U.S. at 104).

This case asks the Court to decide when

government officeholders’ “personal” social media

accounts become “official” and therefore constitute

state action subject to constitutional rules. Most

circuits have adopted a “purpose or appearance” test

to determine when personal accounts take on official

status, looking to the totality of circumstances to

assess state action. E.g., Knight First Amend. Inst. v.

Trump, 928 F.3d 226, 235–36 (2d Cir. 2019), reh’g

denied, 953 F.3d 216 (2d Cir. 2020), vacated as moot

sub nom. Biden v. Knight First Amend. Inst., 141 S.

Ct. 1220 (2021); Davison v. Randall, 912 F.3d 666, 680

(4th Cir. 2019); Garnier v. O’Connor-Ratcliff, 41 F.4th

1158, 1170–77 (9th Cir. 2022), cert. granted, 143 S. Ct.

1179 (2023); Campbell v. Reisch, 986 F.3d 822, 825–

26 (8th Cir. 2021). By contrast, the Sixth Circuit below

adopted an “actual or apparent official duties” test.

Lindke v. Freed, 37 F.4th 1199, 1203 (6th Cir. 2022),

cert. granted, 143 S. Ct. 1780 (2023). Under this test,

an officeholder’s use of social media is considered state

action only if it is part of an officeholder’s “actual or

apparent duties” or could not happen the same way

“without the authority of the office.” Id. (cleaned up).

SUMMARY OF ARGUMENT

This Court should reverse the Sixth Circuit,

because the “actual or apparent official duties” test

enables public officials to turn the social-media

platforms on which they voluntarily choose to conduct

public business into one-way channels of

communication. Worse, it enables them to mute

members of the public selectively to screen out views

they dislike.

All too often, politicians choose the comfortable

and convenient option of silencing their critics.

Examples are not hard to find. Most prominently,

former President Trump operated his personal

Twitter account as a tool of his administration while

selectively blocking users and their critical comments.

The same techniques have been employed by public

officials at all levels, from state and federal

legislators, to governors and administrative officials,

and on down to county board members and school

board trustees. This case involves a city manager who

used his Facebook page not just as an identifier for his

government position, but also to conduct official

business.

Politicians cannot have it both ways—they cannot

use private social media accounts to conduct public

business and then claim their decision to cut off

discussion is a matter of private choice. “Having opted

to create a [social media] account . . . and benefit from

its broad, public reach,” public officials should not be

permitted to “divorce themselves from its First

Amendment implications and responsibilities as state

actors.” One Wis. Now v. Kremer, 354 F. Supp. 3d 940,

954 (W.D. Wis. 2019).

State actors are as state actors do: Nothing

compels public officials to use personal social media

accounts to conduct government business. But when

they do so, they are bound by constitutional

obligations. Government officials are not exercising

their personal free speech rights when they use social

media accounts to conduct public affairs. When

speaking “pursuant to their official duties,” officials

“are not speaking as citizens for First Amendment

purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421

(2006). When officials use personal accounts to boost

their governmental profiles and conduct public

business, they are acting “under color of state law,”

and their actions are “fairly attributable to the state.”

See Lugar v. Edmondson Oil Co., 457 U.S. 922, 935–

37 (1982).

Most circuits that have addressed this issue have

applied a fact-specific inquiry into how the official

describes and uses the account, to whom features of

the account are made available, and how others,

including government officials and agencies, regard

and treat the account. Under this “purpose or

appearance” approach, the courts have correctly found

that state action is present and that the First

Amendment does not permit a governmental official

to use a social media platform for official purposes and

then exclude persons from an otherwise open dialogue

merely because they expressed views the official

disfavors.

By contrast, the Sixth Circuit’s “actual or apparent

duties” test finds state action only where social media

sites are authorized, managed, or funded by the

government. This narrow approach effectively ignores

this Court’s jurisprudence that finds state action for

activities conducted under color of state law or for

actions “fairly attributable to the state.” Lugar, 457

U.S. at 937. While the Sixth Circuit touted this as a

“bright line rule,” what it created is a blueprint to

enable government officials to evade First

Amendment review of their social media activity.

Public officials who use their social media accounts

to conduct public business while claiming a “private”

right to avoid criticism betray the First Amendment’s

guarantee of free expression and undermine its

essential purpose of facilitating democratic rule.

Speech concerning public affairs “is more than selfexpression; it is the essence of self-government.”

Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964). The

First and Fourteenth Amendments embody our

“profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide-open, and that it may well include

vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” New York

Times v. Sullivan, 376 U.S. 254, 270 (1964).

This Court should reverse the decision below to

preserve the promise that social media can serve as a

forum where citizens can “petition their elected

representatives and otherwise engage with them in a

direct manner.” Packingham, 582 U.S. at 104–05.

ARGUMENT

I. The Constitution Should Not Permit

Government Officials to Use Social Media as

a Tool to Limit Public Discourse.

A. Public officials increasingly reap the

benefits of interactive communications

media.

Political officeholders have widely recognized and

embraced the potential of social media. The highest

officials down to the most local have opted to conduct

the public’s business using the interactive features

that are the defining characteristic of social media.

Each day, thousands of officials converse directly with

their constituents and the public at large on social

media platforms. From mayors to district attorneys,

congressional representatives to police chiefs, public

officials from America’s smallest towns and largest

cities alike employ social media to connect with

citizens.2

In an attempt to “bring[] clarity” “to a real-world

context that’s often blurry,” the Sixth Circuit created

E.g., DA Larry Krasner (@DA_LarryKrasner), Twitter,

https://twitter.com/DA_LarryKrasner (last visited June 19,

2023) (Philadelphia District Attorney’s Twitter account); Has

Florida Man Finally Met His Match? Meet Florida Sheriff, Bay

News 9 (July 26, 2022, 9:54 AM), [https://perma.cc/RN7N-RFSC]

(describing how several Florida sheriffs use social media to

communicate with the community); Cory Booker (@CoryBooker),

Twitter, https://twitter.com/CoryBooker (last visited June 20,

2023) (the New Jersey senator and former mayor of Newark, NJ

has used his personal Twitter account to connect with

constituents since 2008).

a bright line test to determine when public officials’

social media activity constitutes state action. Lindke

v. Freed, 37 F.4th 1199, 1206–07 (6th Cir. 2022). In

doing so, however, the court failed to recognize that

government actors use social media in varied ways.

In many cases, social media usage is fully

integrated with governmental functions. For example,

city council members live-tweet the minutes of public

meetings,3 mayors share videos and photos of

themselves interacting with the community,4 and city

officials detail road closures.5 Public universities also

leverage social media to share news, make

announcements, foster school spirit, point to

resources, connect with alumni, and interact directly

with students.6

Beyond facilitating the day-to-day functioning of

government, social media can be a critically important

public tool during emergencies and public health

Albuquerque City Council (@ABQCityCouncil), Twitter

(May 2, 2023, 12:22 AM), https://twitter.com/ABQCityCouncil/

status/1653253531443294209.

4 Mayor Bryce

Ward (@mayorbryceward), Instagram (Dec.

15, 2022), https://www.instagram.com/p/CmNoOb-v4OI/.

5 City of Saint Paul – Government, Facebook (June 12, 6:01

PM), https://www.facebook.com/photo?fbid=569345462045121&

set=a.168452565467748.

6 See,

e.g.,

University

Michigan,

Facebook,

https://www.facebook.com/UniversityOfMichigan/ (last visited

June 20, 2023); LSU (@lsu), TikTok, https://www.tiktok.com/

@lsu (last visited June 20, 2023); Arizona State University

(@arizonastateuniversity), Instagram, https://www.instagram.

com/arizonastateuniversity/ (last visited June 20, 2023).

crises. Many Americans turned to social media for

information during the first few months of the Covid19 pandemic. A 2020 poll conducted by Gallup and

Knight Foundation found that a majority of adults

who use social media reported that the information

they received about the virus from public officials’

social media posts during that time was helpful.7

The interactive nature of social media makes it

uniquely useful because it enables officials to solicit

feedback and access public opinion.8 A 2014 study

found that more than three-quarters of congressional

staffers reported that social media enabled “more

meaningful interactions” between members of

Congress and their constituents.9 Many officials also

use the same social media to cultivate their public

image and connect with the public on a more human

level. This includes peppering their social media feeds

with family pictures and holiday greetings and

7 Zacc Ritter, Americans Use Social Media for COVID-19 Info,

Connection, Gallup News (May 21, 2020), https://news.

gallup.com/poll/311360/americans-social-media-covid-info

rmation-connection.aspx [https://perma.cc/R8Y5-VG88].

Jacob R. Straus, Social Media Adoption by Members of

Congress: Trends and Congressional Considerations, R45337,

Cong. Rsch. Serv. 1 (Oct. 2018), https://crsreports.congress.gov

/product/pdf/R/R45337 [https://perma.cc/VU59-QWJB].

Bradford Fitch & Kathy Goldschmidt, #SocialCongress

2015, Cong. Mgmt. Found. 10 (2015), https://www.congressfound

ation.org/storage/documents/CMF_Pubs/cmf-social-congress-201

5.pdf [https://perma.cc/D7WU-VLRF].

offering words

gratitude.10

fortitude,

celebration,

and

The government makes extensive use of social

media though official websites and governmentowned accounts. Federal agencies have registered

more than 10,000 social media accounts with the U.S.

Digital Registry.11 The governors of each state use

social media to communicate with the public about

their official duties.12 In such circumstances, there is

no question that this use of official social media

accounts to conduct official business constitutes state

action.

In other instances, however, officials choose to use

their personal accounts to conduct their official duties.

Former President Trump converted what began as a

private Twitter account into “one of the White House’s

main vehicles for conducting official business.” Knight

First Amend. Inst., 928 F.3d at 232. Through this

account, he announced and defended his policies,

promoted his Administration’s legislative agenda,

engaged with foreign leaders, publicized state visits,

responded to critical press coverage, and interacted

10 See, e.g., Paulina Firozi, Politicians fill social media with

Christmas messages, The Hill (Dec. 26, 2016), https://thehill.com

/blogs/blog-briefing-room/news/311798-politicians-fill-social-med

ia-with-christmas-messages/ [https://perma.cc/DP5P-ANHL].

U.S. Digital Registry, Digital.Gov, https://digital.gov/

services/u-s-digital-registry/ (last visited June 20, 2023) [https://

perma.cc/FHQ9-SQ43].

12 Governors’ Social Media Accounts, Nat’l Governors Ass’n,

https://www.nga.org/governors/social/ (last visited June 19,

2023) [https://perma.cc/R8J6-R2SS].

with more than 50 million followers. Id.

The

President used this account on a near daily basis “as

a channel for communicating and interacting with the

public about his administration.” Id. at 235 (cleaned

up).

President Biden similarly uses his “personal”

Twitter account to communicate with the public. The

President regularly tweets about his positions on

important public policy issues—ranging from gun

control13 to the cost of living.14 He also comments on

other politicians’ agendas,15 shares information

related to his administration’s work,16 and re-tweets

announcements from the official “@POTUS” account.

President Biden’s personal account, which he

established in 2007, has nearly 6 million more

followers than the official POTUS account.17

Members of Congress and their staff also use

personal social media accounts in furtherance of their

public duties. In 2020, members of the 116th Congress

13 Joe Biden (@JoeBiden), Twitter (June 15, 2023, 2:29 PM),

https://twitter.com/JoeBiden/status/1669411704537587712.

14 Joe Biden (@JoeBiden), Twitter (June 14, 2023, 3:44 PM),

https://twitter.com/JoeBiden/status/1669068188691185665.

15 Joe Biden (@JoeBiden), Twitter (May 24, 2023, 8:30 PM),

https://twitter.com/JoeBiden/status/1661530118458683394.

16 Joe Biden (@JoeBiden), Twitter (May 14, 2023, 11:37 AM),

https://twitter.com/JoeBiden/status/1657047252605575170.

17 As of June 20, 2023, 37.2 million people followed Biden’s

personal account, while 31.3 people followed the official POTUS

account.

maintained more than 2,000 active Facebook and

Twitter accounts and accumulated over a quarterbillion followers between them. In an average month,

congressional social media accounts publish more

than 100,000 tweets and Facebook posts and garner

millions of reactions.18

The Pew Research Center found that the typical

(median) member of congress maintains two accounts

on each platform—one “official” account and another

personal

campaign-related

account.19

Representatives Dan Crenshaw and Alexandria

Ocasio-Cortez and Senator Cory Booker, for example,

all use their personal Twitter accounts to

communicate their policy positions, comment on

legislative matters and current affairs, and interact

with other Twitter users. They also use these accounts

to offer personal updates and general messages

unrelated to their official duties.20 In each instance,

the politicians’ personal accounts have garnered

significantly more followers than their official

18 Patrick Van Kessel et al., Congress Soars to New Heights

on Social Media (July 16, 2020) https://www.pewresearch.org/int

ernet/2020/07/16/congress-soars-to-new-heights-on-social-media

/ [https://perma.cc/3343-WPQU].

19 Id.

20 Dan Crenshaw (@DanCrenshawTX), Twitter, https://twit

ter.com/DanCrenshawTX (last visited June 20, 2023) (1.2 million

followers); Alexandria Ocasio-Cortez (@AOC), https://twitter.c

om/AOC (last visited June 20, 2023) (13.4 followers); Cory Booker

(@CoryBooker), https://twitter.com/CoryBooker (last visited

June 20, 2023) (4.7 million followers).

congressional accounts.21 These examples illustrate

the overlap between a state-sanctioned social media

account and “personal” accounts.

This case likewise involves a public official who uses

his personal social media account to identify his

official governmental position and to conduct public

business. Respondent is a city manager who chose to

use his personal Facebook page to post administrative

directives he issued, announce Covid-19 policies, and

share news about policies he initiated. Lindke, 37

F.4th at 1201.

B. Public officials too often succumb to the

temptation to silence critics.

Many public officials understandably want to reap

the benefits of the social media megaphone while

retaining the ability to mute critics and silence

dissenters. Officials spanning the political spectrum,

from former President Trump to Representative

Ocasio-Cortez, have used the blocking functions of

social media to deny access to critics and vanish

dissenting comments. 22

21 Compare supra note 22, with Rep. Dan Crenshaw

(@RepDanCrenshaw), Twitter, https://twitter.com/RepDanCren

shaw (last visited June 21, 2023) (695,600 followers); Rep.

Alexandria Ocasio-Cortez (@RepAPC), Twitter, https://twitter

.com/repaoc (last visited June 21, 2023) (779,100 followers); Sen.

Cory Booker (@SenBooker), Twitter, https://twitter.com/SenB

ooker (last visited June 21, 2023) (199,100 followers)

22 Charlie Savage, Trump Can’t Block Critics From His

Twitter Account, Appeals Court Rules, N.Y. Times (July 9, 2019),

They are far from alone. Former Maryland

Governor Larry Hogan blocked hundreds of users who

posted critical comments on his personal Facebook

page that he had used to inform the public about his

personal life, but also to promote his administration’s

agenda and urge voters to contact his opponents. The

users were restored after a legal challenge was filed.23

Likewise, former Alabama Secretary of State John

Merrill used his personal Twitter account to perform

his official duties, yet blocked a number of accounts

for tweets “that were directed at him and that

concerned election law, criticized him, or included

comments with which he disagrees.” Fasking v.

Merrill, No. 2:18-cv-809-JTA, 2023 WL 149048, at *2–

6, *18 (M.D. Ala. Jan. 10, 2023), dismissed as moot,

Fasking v. Allen, No. 2:18-cv-809-JTA, 2023 WL

2655863 (M.D. Ala. Mar. 27, 2023). Several members

of the Wisconsin legislature blocked critics from their

personal Twitter accounts for, among other things,

https://www.nytimes.com/2019/07/09/us/politics/trump-twitterfirst-amendment.html [https://perma.cc/YWN2-83X2]; Sasha

Ingber, Alexandria Ocasio-Cortez Is Sued Over Blocking Twitter

Followers, NPR (July 12, 2019), https://www.npr.org/2019/07/12

/741038121/alexandria-ocasio-cortez-is-sued-over-blocking-twitt

er-followers [https://perma.cc/5QLJ-MYXB].

23 Ovetta Wiggins and Fenit Nirappil,

Gov. Hogan’s Office

has blocked 450 people from his Facebook page in two years,

Washington Post (Feb. 8, 2017), (https://www.washingtonpost

.com/local/md-politics/gov-hogans-office-has-blocked-450-peoplefrom-his-facebook-page-in-two-years/2017/02/08/54a62e66-ed4511e6-9973-c5efb7ccfb0d_story.html [https://perma.cc/L4NQ-C2Q

7]; Jon Brodkin, Republican governor forced to stop blocking

Facebook users who criticize him, Ars Technica (April 3, 2018),

(https://arstechnica.com/tech-policy/2018/04/republican-governo

r-forced-to-stop-blocking-facebook-users-who-criticize-him/

[https://perma.cc/72KR-MC22].

“crude comments on Wisconsin politics,” and “tweets

of an inappropriate and unprofessional nature.” One

Wis. Now, 354 F. Supp. 3d at 948–49. And former

Maine Governor Paul LePage, who used his personal

Facebook page to support his office, deleted posts and

blocked users from a progressive group.24

Unfortunately, the tendency to resort to blocking

has taken root even on official government sites. In

2020, FIRE published a report summarizing

information gained from public records requests sent

to 224 public colleges and universities in all 50 states,

asking for details on the institutions’ use of social

media blocking tools. See No Comment, supra.

Substantive responses from 198 institutions revealed

that nearly ninety percent had blocked at least some

users from either their Facebook or Twitter pages. Id.

at 11. Collectively, these institutions blocked 13,197

users on Facebook and 4,065 users on Twitter from

interacting with their posts, pages, or tweets.

The subjects of the blocking decisions ranged from

political or controversial topics to the seemingly

random. For example, Georgia State University

blocked a “Georgia for Bernie” account on Twitter,

while the University of Alaska Anchorage blocked an

“Alaskans4Trump” account. Id. at 13. The University

of Montana blocked a Twitter account that reported

on “the #UMRape crisis that has been plaguing” the

university. Id. Idaho State University blocked a

24 Scott Thistle, Settlement ends blocking of critical comments

on pro-LePage Facebook page, Portland Press Herald (Dec. 10,

2018),

https://www.pressherald.com/2018/12/10/lepage-teamsettles-lawsuit-over-facebook-blocking/ [https://perma.cc/5634PFJJ].

Facebook page critical of a university employee’s big

game hunting trip in South Africa. Id. And, weirdly,

the University of North Dakota blocked a Facebook

group called “Dog Enthusiasts of North Dakota, no

posers, only real dog lovers.” Id.

And so it goes. In this case, the Respondent’s

Facebook posts regarding his city’s Covid-19 policies

“caught the attention of one disconcerted citizen” who

posted critical comments. But as the Sixth Circuit

summed up, “Freed didn’t appreciate the comments,

so he deleted them. And Freed eventually ‘blocked’

Lindke from the page, which kept Lindke from

commenting on Freed’s page and its posts.” Lindke, 37

F.4th at 1202. In short, the City Manager’s

justification for silencing a constituent boiled down to

this: I blocked critical speech because I can.

C. Government officials can’t have it both

ways when they use social media.

Obviously, no one likes being subject to “vehement,

caustic, and sometimes unpleasantly sharp attacks,”

but the First Amendment requires public officials to

accept that the possibility of criticism comes with the

job. Sullivan, 376 U.S. 254, 270 (1964). “Those who

won our independence believed . . . that public

discussion is a political duty; and that this should be

a fundamental principle of the American

government.” Id. “[H]arsh criticism . . . is a price our

people have traditionally been willing to pay for selfgovernance.” Doe v. Reed, 561 U.S. 186, 228 (2010)

(Scalia, J., concurring).

It is not as though public officials lack choices for

how they communicate with the public. They can

simply use official state-owned or managed websites

that may—or may not—include interactive features.

They can augment their “official” government social

media accounts with personal accounts, as the

President and most members of Congress have done.

See supra pp. 10–13. Or they keep their social media

activity as individuals separate from their

government personae, leaving little doubt about when

they communicate in their personal identities as

citizens, as opposed their institutional roles. The

choice is entirely in their hands—but constitutional

limits kick in when they blur the lines between the

official and the personal.

Government officials who opt to use their social

media accounts as tools of governance forfeit the

ability to cancel critics or delete unfavorable

comments as if they were merely deciding who to

entertain in their homes. “Having opted to create a

[social media] account . . . and benefit from its broad,

public reach,” public officials should not be permitted

to “divorce themselves from its First Amendment

implications and [their] responsibilities as state

actors.” One Wis. Now, 354 F. Supp. 3d at 954.

II. Public Officials Engage in State Action When

They Use Social Media Accounts to Conduct

Public Business.

A. The key issue is whether personal

accounts are used as tools of governance.

A person’s status as a government official may not

alone resolve the state action question, but neither

does the fact that the social media account at issue is

“personal,” or that it communicates information about

the official’s private life. The Sixth Circuit held that

the Respondent “maintained his Facebook page in his

personal capacity,” despite the fact that his page

category designated him a “public figure” and listed

his title as City Manager of Port Huron along with

contact information for city offices, and used the site

to publicize administrative directives he issued,

including posts related to the city’s Covid-19 response.

Lindke, 37 F.4th at 1202–03. This conclusion is

incorrect: It is not just Respondent’s position as a

public official that renders his conduct state action,

but the fact that he also uses his personal account to

act in his official capacity and exercise his

responsibilities pursuant to state law.

Government officials are not exercising their

personal free speech rights when they choose to use

their social media accounts to conduct public affairs.

E.g., Campbell, 986 F.3d at 826 (“A private account

can turn into a governmental one if it becomes an

organ of official business.”). A citizen “who works for

the government” undoubtedly has a constitutionally

protected right to speak as a citizen “about matters of

public concern,” but when speaking “pursuant to their

official duties, the employees are not speaking as

citizens for First Amendment purposes.” Garcetti v.

Ceballos, 547 U.S. at 419–21. The relevant question is

whether the official has chosen to use his or her social

media site to conduct government business. West v.

Adkins, 487 U.S. 42, 50 (1988) (“a public employee

acts under color of state law while acting in his official

capacity or while exercising his responsibilities under

state law”).

This Court has addressed various contexts in which

officials pursue their official duties and thus are

considered to be acting “under color of state law.”

Lugar v. Edmondson Oil Co, 457 U.S. 922, 928 (1982)

(“‘[U]nder color’ of law has consistently been treated

as the same thing as the ‘state action’ required under

the Fourteenth Amendment”). When a government

official uses his social media account to conduct public

business, the main issue to consider is whether the

actions are “fairly attributable to the state.” Id. at 937;

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n, 531 U.S. 288, 295 (2001). No single factor is

dispositive, id., and courts will examine the “totality

of the circumstances” to determine if the challenged

action bears “a ‘sufficiently close nexus’ with the State

to be ‘fairly treated as that of the State itself.’”

Rossignol v. Voorhaar, 316 F.3d 516, 525 (4th Cir.

2003) (quoting Jackson v. Metro. Edison Co., 419 U.S.

345, 351 (1974)). See Skinner v. Ry. Lab. Execs. Ass’n.,

489 U.S. 602, 614–15 (1989).

Under this analysis, an official’s conduct is more

likely to amount to state action when it “occurs in the

course of performing an actual or apparent duty of his

office.” Martinez v. Colon, 54 F.3d 980, 986 (1st Cir.

1995). The most important question for a government

official’s social media account is whether it has been

used as a “tool of governance.” Campbell, 986 F.3d at

825. If so, there can be little doubt that the official is

engaged in state action.

Of course, government officials have the right to

use social media without being encumbered by

constitutional obligations. Campbell, 986 F.3d at 826

(“not every social media account operated by a public

official is a government account”) (quoting Knight, 928

F.3d at 236). But when they choose to use such

accounts to conduct public affairs and take advantage

of social media’s defining feature of interactivity, they

are engaged in state action.

B. The First Amendment prohibits viewpoint

discrimination on social media sites used

to conduct public business.

In stark contrast to the Sixth Circuit’s ruling, most

circuits that have addressed this question have

correctly held that “the First Amendment does not

permit a governmental official who utilizes a social

media platform for official purposes to exclude

persons from an otherwise open dialogue merely

because they expressed views disfavored by the

official.” Knight, 953 F.3d at 220 (statement of Parker,

J.). See Garnier, 41 F.4th at 1177; Davison, 912 F.3d

at 687.

That conclusion naturally follows from three

premises: (1) Operating a social media site to conduct

public business is government speech, not private

speech; (2) The interactive features of social media

that invite public comment are a type of public forum;

and (3) Viewpoint-based restrictions on public

comments violate the First Amendment.

First, an official who clothes his personal social

media account with the trappings of office and

conducts official business on that site is speaking as

the government, not in a personal capacity. Davison,

912 F.3d at 686 (“To be sure, Randall’s comments and

curated references on the Chair’s Facebook Page to

other Pages, personal profiles, and websites amount

to governmental speech.”); Garnier, 41 F.4th at 1172

(“both in the appearance and the content of the pages,

the Trustees effectively ‘display[ed] a badge’ to the

public signifying that their accounts reflected their

official roles as PUSD Trustees, whether or not the

District had in fact authorized or supported them”)

(cleaned up); Knight, 928 F.3d at 239 (“Everyone

concedes that the President’s initial tweets (meaning

those he produces himself) are government speech.”).

It is untenable to conclude the officials are exercising

their personal First Amendment rights when

speaking “pursuant to their official duties.” Garcetti v.

Ceballos, 547 U.S. at 421. See supra Section II.A.

Second, an official’s decision to use social media as

the method of communication, with its inherent

interactivity, indicates a choice to open a forum of

some kind. Packingham, 582 U.S. at 106–08. “Social

media

websites—Facebook

and

Twitter

particular—are fora inherently compatible with

expressive activity.” Garnier, 41 F. 4th at 1178. As

noted, officials could choose many forms of one-way

communication, including static websites, to deliver

messages about their government positions. But the

selection of a medium that provides two-way

communication by definition is an open invitation to

citizen participation. One Wis. Now, 354 F. Supp. 3d

at 954 (“If defendants truly had no intention to create

a space for public interaction and discourse, they

would not have created public Twitter accounts in the

first place.”). See also Davison, 912 F.3d at 687

(“Randall also expressly opened the Chair’s Facebook

Page’s middle column—its interactive space—for

‘ANY’ user to post on ‘ANY’ issues”). Opening a

channel of communication in this way “for

indiscriminate use by the general public” creates a

public forum. Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 47 (1983).

The fact that the government actor’s original posts

are “official” does not convert citizens’ responses into

government speech. Given social media’s interactive

features, “the speech in question is that of multiple

individuals, not just . . . the government. When a

Twitter user posts a reply to one of the President’s

tweets, the message is identified as coming from that

user, not from the President.” Knight, 928 F.3d at 239.

Thus, “while the President’s tweets can accurately be

described as government speech, the retweets, replies,

and likes of other users in response to his tweets are

not government speech under any formulation.” Id.

See Davison, 912 F.3d at 687 (“[T]he interactive

component of the Chair’s Facebook Page constitutes a

public forum, even though Randall’s curation of and

posts to the Chair’s Facebook Page amount to

government speech.”). Accordingly, operation of the

interactive portions of public officials’ social media

accounts is constrained by the First Amendment.

Third, this means—at a minimum—that public

officials cannot engage in viewpoint discrimination

when they block comments and limit users on social

media accounts used for public purposes. The rule is a

basic tenet of First Amendment law: When the

government creates a public forum, “‘viewpoint

discrimination’ is forbidden.” Matal v. Tam, 582 U.S.

218, 243 (2017). This Court has long held that

viewpoint discrimination is “an egregious form of

content discrimination,” and when government

targets “particular views taken by speakers on a

subject, the violation of the First Amendment is all the

more blatant.” Rosenberger v. Rector & Visitors of the

Univ. of Va., 515 U.S. 819, 828–829 (1995). As Justice

Alito pithily put it, viewpoint discrimination is “poison

to a free society.” Iancu v. Brunetti, 139 S. Ct. 2294,

2302 (2019) (Alito, J., concurring).

Once public officials “are permitted to pick and

choose” who they want to receive feedback from on

their social media accounts, “the path is cleared for a

regime of censorship under which full voice can be

given only to those views which meet with the

approval of the powers that be.” Knight, 953 F.3d at

221 (statement of Parker, J.) (quoting Se. Promotions,

Ltd. v. Conrad, 420 U.S. 546, 563 (1975)). Accordingly,

the Court should confirm that the constitutional

prohibition against viewpoint discrimination applies

to public officials who use their “personal” social

media accounts to conduct public business.

C. The Sixth Circuit’s “actual or apparent

official duties” test is too narrow.

The Sixth Circuit does not disagree that the First

Amendment rule against viewpoint discrimination

binds government actors, but it adopted far too

narrow a test for when officials’ use of their social

media accounts constitutes state action. Under its

approach, operation of a social media site should be

treated as state action only where (1) it is part of an

officeholders’ “actual or apparent duties,” or (2) it

could not happen in the same way “without the

authority of the office.” Lindke, 37 F.4th at 1203. The

court explained that it “part[ed] ways with the other

circuits’ approach to state action” that focus on the

social media page’s “appearance or purpose.” Id. at

1206.

But the Sixth Circuit’s test identifies when actions

are undertaken directly by the state, not when they

are taken “under color of state law,” or could be “fairly

attributed to the state.” The examples the court set

forth make this clear: State action will be found only

where state law “requires an officeholder to maintain

a social-media account,” where maintaining the page

is “one of the [officeholder’s] actual duties,” where

state resources are used to pay for or run the account,

or where the social media account belongs to the office

rather than the official. Id. at 1203–04.

This constrained conception ignores this Court’s

repeated admonitions that determining whether a

given activity “is ‘private,’ on the one hand, or ‘state

action,’ on the other, frequently admits of no easy

answer.” Jackson, 419 U.S. at 349–350. The analysis

may turn on a “host of facts” that address, among

other things, whether ostensibly private action is

“entwined with governmental policies,” or when

government is “entwined in [its] management or

control.” Brentwood Acad., 531 U.S. at 296. See Lugar,

457 U.S. at 939.

The Sixth Circuit characterizes its test as an effort

to bring “the clarity of bright lines” that “offer

predictable application for state officials,” Lindke, 37

F.4th at 1206–07, but it merely proffers the easy

answers this Court has eschewed. True, the Sixth

Circuit’s approach does promise “predictable

application for state officials”—but not in a good way.

Officeholders would be able to use their “personal”

social media accounts to conduct public business, as

many have done. And so long as the accounts are not

mandated, funded, or managed by state law, these

officials could censor criticism to their heart’s content,

free from any constitutional restraint. The Sixth

Circuit’s “actual or apparent duties” test gives

government officials a blueprint for evading First

Amendment review.

As the various cases that have made their way

through the courts have shown, liberal politicians

would mute their critics from the right while

conservatives would silence their critics from the left.

And once officeholders understand that the “actual or

apparent duties” test gives them free rein to create an

echo chamber, it is predictable that more “official”

business will be conducted on ostensibly “personal”

social media accounts. This prospect undermines

social media’s potential as an important means of civic

engagement.

The better alternative is the “fact-specific inquiry”

other circuits have used, which examines things like

“how the official describes and uses the account; to

whom features of the account are made available; and

how others, including government officials and

agencies, regard and treat the account.” Knight, 928

F.3d at 236. Such an inquiry focuses on how public

officials actually use their accounts based on easily

understood factors. While there may be close cases

where “occasional stray messages that might

conceivably be characterized as conducting the

public’s business” are claimed to constitute state

action, Campbell, 986 F.3d at 827, in most cases

courts have had little difficulty in identifying when

personal social media accounts are being used as “an

official vehicle for governance.” See Knight, 928 F.3d

at 237; Davison, 912 F.3d at 683; Garnier, 41 F.4th at

1170 (“The Trustees’ use of their social media

accounts was directly connected to, although not

required by, their official positions.”).

This Court should apply the well-established

principles from its cases analyzing action taken under

color of state law to public officials’ use of social media

accounts. Doing so would require rejecting the

simplistic, ripe-for-abuse approach articulated by the

Sixth Circuit below, and it would keep this Court’s

promise that social media can serve as a forum where

citizens can “petition their elected representatives

and otherwise engage with them in a direct manner.”

Packingham, 582 U.S. at 104–05.

CONCLUSION

The nature of our government is that it is subject

to wide-open and robust debate. Sullivan, 376 U.S. at

270. In these polarized times, “[t]his debate

encompasses an extraordinarily broad range of ideas

and viewpoints and generates a level of passion and

intensity the likes of which have rarely been seen.”

Knight, 928 F.3d at 240. But as uncomfortable as that

might make us, it is a feature of the system, not a bug.

For “if the First Amendment means anything, it

means that the best response to disfavored speech on

matters of public concern is more speech, not less.” Id.

Accordingly, this Court should reverse the decision

below.

June 30, 2023

Respectfully Submitted,