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

No. 22-611

In the Supreme Court of the United States

KEVIN LINDKE, PETITIONER

v.

JAMES R. FREED

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

SOPAN JOSHI

MASHA G. HANSFORD

Assistants to the Solicitor

General

DANIEL TENNY

JENNIFER L. UTRECHT

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether and under what circumstances a city official

engages in state action under the First and Fourteenth

Amendments when the official blocks a member of the

public from viewing or responding to posts on a socialmedia account.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 2

Summary of argument ................................................................. 8

Argument..................................................................................... 11

A. Public officials who deny access to private

property engage in state action only if they

exercise government authority or perform

a traditional and exclusive public function .................. 12

B. Respondent’s blocking of petitioner was

not state action ............................................................... 17

C. Petitioner’s contrary reasoning is unpersuasive ........ 21

D. An overly expansive theory of state action in this

context would undermine, not promote, First

Amendment values ........................................................ 30

Conclusion ................................................................................... 33

TABLE OF AUTHORITIES

Cases:

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) ............. 15

Amalgamated Food Employees Union Local 590

v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) ....... 16

American Manufacturers Mutual Insurance Co.

v. Sullivan, 526 U.S. 40 (1999) ......................... 12, 13, 19

Biden v. Knight First Amendment Institute,

141 S. Ct. 1220 (2021) ............................................... 1, 20

Blum v. Yaretsky, 457 U.S. 991 (1982) .......................... 30

Brentwood Academy v. Tennessee Secondary

School Athletic Association, 531 U.S. 288

(2001) .............................................................................. 2

Central Hardware Co. v. NLRB, 407 U.S. 539

(1972) .............................................................................. 15, 16

(III)

IV

Cases—Continued:

Page

Columbia Broadcasting System, Inc. v.

Democratic National Committee, 412 U.S. 94

(1973) .............................................................................. 12, 16

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) ............ 5

Garcetti v. Ceballos, 547 U.S. 410 (2006) ....................... 31, 32

Garnier v. O’Connor-Ratcliff, 41 F.4th 1158

(9th Cir. 2022), cert. granted, No. 22-324

(Apr. 24, 2023) ....................................................................... 5

Georgia v. McCollum, 505 U.S. 42 (1992) ............................. 2

Gilmore v. City of Montgomery, 417 U.S. 556 (1974) ........ 15

Griffin v. Maryland, 378 U.S. 130 (1964) ................ 21-23, 30

Hudgens v. NLRB, 424 U.S. 507 (1976) .............................. 16

Lane v. Franks, 573 U.S. 228 (2014) .............................. 20, 25

Lugar v. Edmondson Oil Co., 457 U.S. 922

(1982) ............................................................. 2, 5, 7, 12-14, 32

Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) .................. 15, 16

Manhattan Community Access

Corp. v. Halleck, 139 S. Ct. 1921

(2019) .................................................. 5, 12, 13, 15-18, 20, 27,

30, 31

Marsh v. Alabama, 326 U.S. 501 (1946) ........................ 15, 29

Monell v. Department of Social Services,

436 U.S. 658 (1978).............................................................. 32

Monroe v. Pape, 365 U.S. 167 (1961) ................................... 21

NCAA v. Tarkanian, 488 U.S. 179 (1988) ........................... 31

Nixon v. Condon, 286 U.S. 73 (1932) ................................... 30

Pickering v. Board of Education, 391 U.S. 563

(1968) .............................................................................. 25, 32

Pleasant Grove City v. Summum, 555 U.S. 460

(2009) .................................................................................... 32

Polk County v. Dodson, 454 U.S. 312 (1981) ........................ 2

V

Cases—Continued:

Page

PruneYard Shopping Center v. Robins, 447 U.S. 74

(1980) .................................................................................... 16

Public Utilities Commission v. Pollak, 343 U.S. 451

(1952) .................................................................................... 30

San Francisco Arts & Athletics, Inc. v.

United States Olympic Committee,

483 U.S. 522 (1987).............................................................. 16

Screws v. United States, 325 U.S. 91 (1945) ................. 14, 21

Shurtleff v. City of Boston, 142 S. Ct. 1583

(2022) .............................................................................. 29, 32

Skinner v. Railway Labor Executives’ Association,

489 U.S. 602 (1989).............................................................. 30

Twitter, Inc. v. Taamneh, 598 U.S. 471

(2023) ...................................................................................... 2

United States v. Classic, 313 U.S. 299 (1941) ............... 14, 21

West v. Atkins, 487 U.S. 42 (1988) ............ 6, 14, 19, 21, 24, 30

Constitution and statutes:

U.S. Const.:

Amend. I (Free Speech Clause)............1, 5, 11, 12, 16, 28

29-33

Amend. IV ........................................................................ 30

Amend. V .......................................................................... 31

Amend. VIII..................................................................... 31

Amend. XIV (Due Process Clause) ...........1, 5, 11, 12, 16,

23, 31

Amend. XV ....................................................................... 31

18 U.S.C. 242 ............................................................................ 2

42 U.S.C. 1983 .......................................................... 2, 5, 12, 21

VI

Miscellaneous:

@CoCapWatch on X, https://twitter.com/cocapwatch ...... 24

@HouseFloor on X, https://twitter.com/housefloor ........ 24

@oyez on X, https://twitter.com/oyez.................................. 24

In the Supreme Court of the United States

No. 22-611

KEVIN LINDKE, PETITIONER

v.

JAMES R. FREED

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case and O’Connor-Ratcliff v. Garnier, cert.

granted, No. 22-324 (Apr. 24, 2023), present the question whether and under what circumstances a local official’s blocking of an individual from a social-media account constitutes state action under the First and Fourteenth Amendments. The United States has a substantial interest in the Court’s resolution of that question.

Federal government officials also use social-media accounts, and the same constitutional state-action analysis applicable to respondent would apply to federal government officials and employees. See, e.g., Biden v.

Knight First Amendment Institute, 141 S. Ct. 1220

(2021). In addition, the Court’s resolution of this case

would have implications for the closely related question

whether respondent acted “under color of ” state law

(1)

2

within the meaning of 42 U.S.C. 1983 when he blocked

petitioner. See Lugar v. Edmondson Oil Co., 457 U.S.

922, 935 n.18 (1982). The United States has authority to

bring criminal prosecutions under 18 U.S.C. 242, which

makes it a criminal offense to act willfully and “under

color of any law” to deprive a person of rights protected

by the Constitution or laws of the United States. The

decision in this case could affect that authority because

the Court has interpreted “under color of ” law to have

the same meaning under Section 242 as it does under

Section 1983. See Lugar, 457 U.S. at 928 n.9. The

United States has participated as amicus curiae in previous cases raising state-action and color-of-law questions. See, e.g., Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288

(2001); Georgia v. McCollum, 505 U.S. 42 (1992); Polk

County v. Dodson, 454 U.S. 312 (1981).

STATEMENT

1. Respondent is the city manager of Port Huron,

Michigan. Pet. App. 2a. Years before being appointed

to that position, while still in college, respondent created a Facebook page. Ibid. Facebook is a social-media

platform that enables accountholders to create online

“posts” on which other users can comment. See Twitter,

Inc. v. Taamneh, 598 U.S. 471, 480 (2023) (explaining

that on Facebook and other social-media platforms, “users can upload messages, videos, and other types of content, which others on the platform can then view, respond to, and share”). Respondent initially limited the

content to “friends”—individuals he accepted as followers. Pet. App. 2a. But sometime between 2010 and

2013, before he began working for Port Huron, respondent made his page publicly accessible to overcome the

5000-friend limit on private pages. Ibid.; see D. Ct. Doc.

3

23-2, at 7-8, 22 (Feb. 17, 2021). Respondent’s page was

titled with his name, “James Freed,” and the account’s

username was “James.R.Freed1.” Pet. App. 14a (citation omitted); J.A. 1.

After his appointment in 2014 as city manager of

Port Huron, respondent updated his page to reflect his

new position, such as by describing himself as “Daddy

to [his daughter], Husband to [his wife] and City Manager” and by listing the city’s website and general email

address as the page’s website and contact email. Pet.

App. 2a (citation omitted); see J.A. 1. The page identified respondent as a “public figure,” not as a “public official.” See Pet. App. 14a; J.A. 287; D. Ct. Doc. 23-2, at

23-24. Respondent also began using his Facebook page

to “share[] information about City programs, policies,

and actions,” Pet. App. 14a, including “some of the administrative directives he issued as city manager,” id.

at 3a. Those posts “amalgamated and shared information that originated from other sources,” id. at 25a,

such as by linking to, and sometimes offering brief commentary on, a news article or a city press release, see

id. at 15a. For example, respondent shared “information regarding [the] installation of a new playground,

reconstruction of a boat launch, and new basketball

courts.” Id. at 14a. Starting in March 2020, he also

posted “about the COVID-19 pandemic and the City’s

response to it.” Ibid. Although respondent posted

about city affairs, the overall content of his posts “had a

strong tendency toward [his] family life.” Id. at 27a (internal quotation marks omitted). For example, respondent used his Facebook page to “post[] pictures of

his family and their activities”; to “share[] updates on

home-improvement projects, photos of outings with

4

friends, and scenic photos of downtown Port Huron”;

and to “share[] Biblical verses.” Id. at 14a.

Respondent operated the Facebook page himself—

none of his staff had access to the page, and respondent

“did not use any governmental employees, resources, or

devices in maintaining his Facebook page.” Pet. App.

24a; see id. at 10a, 15a, 26a; see also D. Ct. Doc. 23-2, at

15 (“I’ve never accessed this page on any city device or

machine.”). Only one of respondent’s many posts was

made during normal business hours, at 9:05 a.m., and

respondent explained that he might have “come in

later” that day. D. Ct. Doc. 23-2, at 19; see Pet. App.

26a. No law or practice made social-media activity part

of respondent’s official role. Pet. App. 9a; see id. at 8a.

And no official account or website directed users to respondent’s Facebook page. Id. at 11a.

Petitioner is a local resident who “didn’t approve of

how [respondent] was handling the pandemic.” Pet.

App. 3a. Petitioner “alleges that he commented on [respondent’s] Facebook page between four and six times

from three different profiles that he operated.” Id. at

15a. For example, in response to a photo of respondent

and the mayor picking up takeout from a local restaurant in the early days of the pandemic, petitioner “commented something to the effect of ‘residents are suffering’ and ‘instead of city leaders being out talking to the

community and being that face of the community in

this,’ they were at an expensive restaurant.” Id. at 15a16a (brackets and citation omitted). Petitioner also

posted comments stating that the city’s response to the

pandemic “was ‘abysmal’ and that ‘the City deserves

better.’ ” Id. at 16a (brackets and citation omitted).

Petitioner alleges that respondent “deleted the comments and blocked” all three of petitioner’s profiles

5

from the page. Pet. App. 15a. A Facebook user blocked

from a public page can view posts on that page but cannot comment on or react to those posts. See Garnier v.

O’Connor-Ratcliff, 41 F.4th 1158, 1164 (9th Cir. 2022)

(describing the effects of blocking), cert. granted, No.

22-324 (Apr. 24, 2023). Petitioner filed suit under 42

U.S.C. 1983, alleging that the deletion of his comments

and the blocking of his profiles violated his rights under

the First Amendment, as incorporated against the

States by the Fourteenth Amendment. Compl. ¶¶ 5161; see Pet. App. 16a.

2. The district court granted summary judgment to

respondent. Pet. App. 13a-29a.

As relevant here, the district court held that respondent did not engage in state action when he deleted

petitioner’s comments and blocked petitioner from his

public Facebook page. Pet. App. 18a-29a. “[M]ost

rights secured by the Constitution are protected only

against infringement by governments.” Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156 (1978). That includes the rights secured by the First and Fourteenth

Amendments. See Manhattan Community Access

Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Accordingly, those constitutional guarantees “can be violated

only by conduct that may be fairly characterized as

‘state action.’ ” Lugar v. Edmondson Oil Co., 457 U.S.

922, 924 (1982).

The district court observed that Section 1983’s requirement that the defendant acted “under color of law”

is, in this context, “the same as” the state-action requirement. Pet. App. 19a n.2. The court explained that

both requirements are satisfied when the defendant

“exercised power possessed by virtue of state law and

made possible only because the wrongdoer is clothed

6

with the authority of state law.” Id. at 19a (quoting

West v. Atkins, 487 U.S. 42, 49 (1988)). In the specific

context where a public official deletes comments on or

blocks users from a social-media page, the court reasoned that many factors are relevant, such as “the use

of government resources, including government employees, to maintain the page”; “whether creating the

account is one of the public official’s enumerated duties”; “whether the public official is identified on the

page with the public position he or she holds”; “whether

the public official solicits comments or invites constituents to have discussions on the page”; and “whether the

account will become state property when the public official leaves office.” Id. at 22a; see id. at 21a-22a. Applying those factors, the court concluded that respondent “administered his Facebook page in a private, not

public, capacity” and thus “was not engaged in state action when he deleted [petitioner’s] comments and

blocked [petitioner] from the page.” Id. at 29a; see id.

at 22a-29a.

3. The court of appeals affirmed. Pet. App. 1a-12a.

The court of appeals explained that under its precedent, a public official engages in state action when he “is

‘performing an actual or apparent duty of his office,’ or

if he could not have behaved as he did ‘without the authority of his office.’ ” Pet. App. 5a (citation omitted).

The court viewed that test as “track[ing] [this] Court’s

guidance” that “ ‘[a] public employee acts under color of

state law” either “ ‘while acting in his official capacity or

while exercising his responsibilities pursuant to state

law.’ ” Ibid. (quoting West, 487 U.S. at 50). Applying

those principles in the specific context of social media,

the court stated that a public official engages in state

action when he operates a social-media account “either

7

(1) pursuant to his actual or apparent duties or (2) using

his state authority.” Id. at 8a. “It’s only then,” the court

explained, “that his social-media activity is ‘fairly attributable’ to the state.” Ibid. (quoting Lugar, 457 U.S.

at 937).

Applying that test, the court of appeals held that respondent’s “Facebook activity was not state action.”

Pet. App. 8a; see id. at 8a-12a. The court observed that

“no state law, ordinance, or regulation compelled [respondent] to operate his Facebook page,” and it emphasized that operating the page “wasn’t designated by law

as one of the actual or apparent duties of [respondent’s]

office.” Id. at 8a. The court rejected the argument that

respondent engaged in state action by using his Facebook page for the “ ‘essential’ task of communicating

with constituents,” explaining that the “argument

proves too much”: “When [respondent] visits the hardware store, chats with neighbors, or attends church services, he isn’t engaged in state action merely because

he’s ‘communicating’—even if he’s talking about his

job.” Id. at 9a. The court also observed that respondent’s Facebook page “did not belong to the office of city

manager” and that respondent did not “rely on government employees to maintain” that page. Id. at 9a-10a.

The court of appeals rejected petitioner’s contention

that state action should be found because respondent

“used the ‘trappings of an official, state-run account’ to

give the impression that the page operated under the

state’s imprimatur.” Pet. App. 11a (citation omitted).

The court acknowledged that such trappings “resemble

the factors [it] consider[s] in assessing when police officers are engaged in state action,” such as “whether an

officer is on duty, wears his uniform, displays his badge,

identifies himself as an officer, or attempts to arrest an-

8

yone.” Ibid. But the court found that resemblance

“shallow” in this context, explaining that “[i]n policeofficer cases, we look to officers’ appearance because

their appearance actually evokes state authority.” Ibid.

The court observed that the public is “taught” to obey

police officers and that “in many cases, an officer

couldn’t take certain action without the authority of his

office—authority he exudes when he wears his uniform,

displays his badge, or informs a passerby that he is an

officer.” Id. at 12a. In “those cases,” the court explained, “appearance is relevant to the question

whether an officer could have acted as he did without

the ‘authority of his office.’ ” Ibid. (citation omitted).

The court found this case distinguishable because respondent “gains no authority by presenting himself as

city manager on Facebook. His posts do not carry the

force of law simply because the page says it belongs to

a person who’s a public official.” Ibid.

SUMMARY OF ARGUMENT

Like the operation of the social-media accounts at issue in O’Connor-Ratcliff v. Garnier, cert. granted, No.

22-324 (Apr. 24, 2023), respondent’s operation of the Facebook account at issue here, which remained his private property, did not constitute state action.

A. State action subject to constitutional scrutiny

generally requires the exercise of a right or privilege

created by the government by someone who may fairly

be described as a state actor. Being a public official is,

however, neither necessary nor sufficient to engage in

state action. A private entity might engage in state action when the government compels it to act; when it engages in joint action with the government; or when it

carries out a traditional, exclusive public function. Conversely, because every public official is also a private

9

person, state action exists only when the official exercises power that he possesses by virtue of his position

or because he is clothed with government authority.

This Court has consistently refused to set forth a comprehensive test for state action and has instead articulated different factors or tests applicable in different

contexts.

One frequently recurring context is when the challenged conduct involves a denial of access to or use of

property (including intangible property), such as refusing to serve a customer or excluding someone from a

forum. In that context, the existence of state action

generally depends on whether the government itself

owns or controls the property to which access has been

denied. When public property is at issue, a denial of

access by a public official generally will be state action;

a denial by a private person may be state action depending on the degree of governmental involvement.

When private property—that is, property over

which the government lacks ownership or control—is at

issue, however, a denial of access will rarely be found to

be state action. In the relatively rare circumstance of a

denial of access to private property by a public official,

courts should not find state action unless the official is

invoking official powers or exercising a traditional and

exclusive public function.

B. Here, the city indisputably lacks ownership or

control over respondent’s Facebook account; respondent created his Facebook page before taking office and

will retain exclusive control over that account when he

leaves. In operating his account, respondent did not exercise any power of his office. His power to block petitioner, for example, flowed from his control over the account features offered by Facebook to all users, irre-

10

spective of his status as city manager. Nor did respondent engage in a traditional, exclusive public function.

Communicating with the public about matters of public

concern is a traditional governmental function—but it

is not exclusive to the government.

That some of the content of respondent’s Facebook

page reflected or derived from his governmental status

is immaterial. The same could be said of any official’s

speech at a campaign rally, fundraising dinner, or

church coffee hour, but that does not convert those

quintessentially nongovernmental activities into state

action.

C. Petitioner’s contrary arguments are misplaced.

Petitioner relies heavily on the history of Section 1983

to establish that state action extends to situations

where an official acts under pretense of law. While actions by officers who overstep their official authority

undoubtedly can constitute state action, it does not follow that respondent’s conduct—operating a private social media account and blocking petitioner from that

account—was state action. Respondent did not exercise,

and so did not abuse, any power that was made possible

because he was clothed with the authority of state law.

Petitioner’s proposed test, which relies on the “appearance” and “purpose” of a particular social media

profile, would make a public official’s right to speak as

a citizen turn on the content of the communication. The

Court should decline to adopt a test that would transform communications in private spaces into official

action—subject to constitutional constraints, on penalty

of money damages—simply because those communications refer too heavily to an official’s role or overlap too

much with the interests the official seeks to further at

work.

11

D. As this Court has recognized, an overly expansive

state-action theory would be especially troublesome in

the First Amendment context.

Subjecting large

amounts of the speech of government personnel to constitutional restrictions could both chill that speech and

induce government employers to regulate the content

of that speech more extensively. Those outcomes would

undermine, not promote, First Amendment values.

At the same time, an expansive state-action theory

would provide little benefit. Any speech found to be

state action is arguably also government speech, to

which constitutional speech constraints (including the

ban on viewpoint discrimination) do not apply. And

even if an official were found to have created a forum

for debate, the official could permissibly impose reasonable content- and speaker-based restrictions in that forum, such as excluding anyone who made offensive comments. As a practical matter, therefore, the end result

of much litigation would likely be the same as under a

more constrained theory of state action.

ARGUMENT

The government’s amicus brief in O’Connor-Ratcliff

v. Garnier, No. 22-324 (June 30, 2023), explains that

where the government neither owns nor controls personal social-media accounts operated by public officials,

the operation of those accounts generally does not constitute state action. See U.S. Amicus Br. at 10-30,

O’Connor-Ratcliff, supra (No. 22-324) (U.S. O’ConnorRatcliff Br.). Under that analysis—which is equally applicable here—respondent’s use of his personal Facebook page while he served as the Port Huron city manager was not state action.

12

A. Public Officials Who Deny Access To Private Property

Engage In State Action Only If They Exercise Government Authority Or Perform A Traditional And Exclusive Public Function

1. The First Amendment’s command “[t]hat ‘Congress shall make no law abridging the freedom of

speech, or of the press’ is a restraint on government action, not that of private persons.” Columbia Broadcasting System, Inc. v. Democratic National Committee,

412 U.S. 94, 114 (1973) (plurality opinion) (citation and

ellipsis omitted); see Manhattan Community Access

Corp. v. Halleck, 139 S. Ct. 1921, 1926 (2019) (“The Free

Speech Clause of the First Amendment constrains governmental actors and protects private actors.”); Lugar

v. Edmondson Oil Co., 457 U.S. 922, 924 (1982) (“Because the [Fourteenth] Amendment is directed at the

States, it can be violated only by conduct that may be

fairly characterized as ‘state action.’ ”). Similarly, 42

U.S.C. 1983 authorizes a cause of action to enforce constitutional guarantees only against persons who act

“under color of ” state law. Those limitations generally

“converge” when, “as here, deprivations of rights under

the Fourteenth Amendment are alleged.” American

Manufacturers Mutual Insurance Co. v. Sullivan, 526

U.S. 40, 50 n.8 (1999).

The distinction between state action and private

conduct is vital to the correct application of the First

Amendment, as incorporated against the States by the

Fourteenth Amendment, and to the preservation of individual liberty. “[S]tate action requires both an alleged

constitutional deprivation ‘caused by the exercise of

some right or privilege created by the State or by a rule

of conduct imposed by the State or by a person for

whom the State is responsible,’ and that ‘the party

13

charged with the deprivation must be a person who may

fairly be said to be a state actor.’ ” American Manufacturers, 526 U.S. at 50 (citation omitted). Although those

“two principles are not the same,” they are interrelated

and generally “collapse into each other” when the defendant is a public official rather than a private party.

Lugar, 457 U.S. at 937; see id. at 928 n.8 (noting lower

court’s recognition that when “the defendant is a public

official * * * there is no distinction between state action

and action under color of state law”).

2. Under those principles, being a public official is

neither necessary nor sufficient to engage in state action. See U.S. O’Connor-Ratcliff Br. at 11-14. It is not

necessary because “a private entity can qualify as a

state actor in a few limited circumstances,” such as

when the government compels it to act, the government

acts jointly with the private entity, or the private entity

“exercises a function ‘traditionally exclusively reserved

to the State.’ ” Manhattan Community Access, 139

S. Ct. at 1926, 1928 (citation omitted); see id. at 1929 n.1.

For that reason, if a federal agency were to use someone’s personal Facebook page (instead of a government

website such as regulations.gov) to conduct notice-andcomment rulemaking, the accountholder’s actions with

respect to those posts and comments—including the

blocking of a member of the public from viewing or commenting on the proposed regulation—would fairly be

characterized as state action.

Conversely, because every public official is also a private citizen, merely being a public official is not sufficient to establish that the official has engaged in state

action. Instead, public officials engage in state action

that is subject to constitutional scrutiny only when they

exercise “power ‘possessed by virtue of state law,’ ” such

14

that their actions are “made possible only because [they

are] clothed with the authority of state law.” West v.

Atkins, 487 U.S. 42, 49 (1988) (citation omitted). That

standard is generally satisfied when a public official

acts “in his official capacity” or “exercis[es] his responsibilities pursuant to state law.” Id. at 50. In contrast,

actions taken by officials “in the ambit of their personal

pursuits”—that is, actions that require neither powers

possessed by virtue of state law nor being clothed with

the authority of state law—are “plainly excluded” from

constitutional scrutiny. Screws v. United States, 325

U.S. 91, 111 (1945) (plurality opinion); see United States

v. Classic, 313 U.S. 299, 326 (1941).

3. Determining whether any particular conduct is an

exercise of government-granted authority or in the ambit of personal pursuits can be difficult, especially in the

abstract. For that reason, rather than set forth a unified or comprehensive test for state action, this Court

“has articulated a number of different factors or tests,”

each to be applied “in different contexts.” Lugar, 457

U.S. at 939; see U.S. O’Connor-Ratcliff Br. at 14-18.

This case does not require the Court to fashion a new

test for state action because it arises in a frequently recurring context: The challenged conduct involves denying access to (or use of ) property, such as refusing to

serve a customer or excluding someone from a forum.

In that context, the existence of state action depends

critically on the nature of the property—specifically,

whether the government itself owns or controls the

property to which access has been denied.

When the government itself owns or controls the

property—that is, when public property is involved—

“the question of the existence of state action centers in

the extent of the [government’s] involvement in [the al-

15

legedly unconstitutional] actions.” Gilmore v. City of

Montgomery, 417 U.S. 556, 573 (1974); see U.S.

O’Connor-Ratcliff Br. at 14-15.

When the government lacks ownership or control of

the property to which access has been denied—that is,

when it is private property—this Court has required a

higher showing to establish state action: “the privately

owned property must assume to some significant degree the functional attributes of public property devoted to public use.” Central Hardware Co. v. NLRB,

407 U.S. 539, 547 (1972); cf. Manhattan Community Access, 139 S. Ct. at 1931 n.3 (suggesting that even that

might not be sufficient). Therefore, absent governmental compulsion or joint action, see, e.g., Adickes v. S. H.

Kress & Co., 398 U.S. 144, 171 (1970), this Court has

rarely found state action based on a denial of access to

private property over which the government lacks ownership or control. See U.S. O’Connor-Ratcliff Br. at 1516. And, of the two cases in which it did, one is factually

obsolete and the other is no longer good law.

The first case was Marsh v. Alabama, 326 U.S. 501

(1946), which held that a private corporation that owned

a “company town” had engaged in state action when it

prohibited distribution of religious literature on a sidewalk. See id. at 506. The Court has since emphasized,

however, that Marsh involved the unusual “economic

anachronism” of a company town, and has explained

that its holding there relied on the principle that a State

“could not permit a corporation to assume the functions

of a municipal government and at the same time deny

First Amendment rights.” Central Hardware, 407 U.S.

at 545-546; see Lloyd Corp. v. Tanner, 407 U.S. 551, 561

(1972) (explaining that Marsh “involved an economic

anomaly of the past”).

16

The other case was Amalgamated Food Employees

Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S.

308 (1968), which held that a shopping center had engaged in state action when it sought to eject pro-union

picketers from its parking lot. See id. at 316-317. The

Court has since expressly overruled Logan Valley and

rejected its core rationale that opening up private property to the public subjects the property to constitutional

constraints on state action. Hudgens v. NLRB, 424 U.S.

507, 518 (1976); see PruneYard Shopping Center v. Robins, 447 U.S. 74, 81 (1980); Lloyd, 407 U.S. at 561-563.

As the Court observed in Central Hardware, the mere

fact that privately owned property is “ ‘open to the public’ ” is insufficient to convert the use of that property

into state action subject to the First and Fourteenth

Amendments, especially given that “[s]uch an argument

could be made with respect to almost every retail and

service establishment in the country.” 407 U.S. at 547.

The government is unaware of other decisions by this

Court holding that a denial of access to private property

over which the government lacks ownership or control

can constitute state action absent governmental compulsion or joint action.

The Court’s hesitation to find state action in that

context extends to cases in which the private property

at issue is intangible. See, e.g., Columbia Broadcasting,

412 U.S. at 119 (plurality opinion); Manhattan Community Access, 139 S. Ct. at 1929; San Francisco Arts &

Athletics, Inc. v. United States Olympic Committee,

483 U.S. 522, 542-547 (1987); see also U.S. O’ConnorRatcliff Br. at 17-18. As this Court has put it, “Benjamin Franklin did not have to operate his newspaper as

‘a stagecoach, with seats for everyone.’ ” Manhattan

Community Access, 139 S. Ct. at 1931 (citation omitted).

17

4. This Court does not appear to have squarely addressed the situation where a public official denies access to private property over which the government

lacks ownership or control. Nevertheless, the principles set forth above can be applied, and they reinforce

each other. See U.S. O’Connor-Ratcliff Br. at 18-19.

For example, when a denial of access involves indisputably private property over which the government lacks

ownership or control, that weighs in favor of finding

that the public official is acting in his private capacity—

which in turn should cause courts to require his conduct

to be much closer to the exercise of a traditional, exclusive public function (as would be required of a private

entity) before finding state action. By contrast, if an

official is carrying out his official duties or exercising

the powers of his office on private property, it is more

likely that the government has “outsourced” one of its

obligations to be discharged using that ostensibly private property (as in the hypothetical example of using a

privately controlled social-media account to conduct

notice-and-comment rulemaking). Manhattan Community Access, 139 S. Ct. at 1929 n.1.

B. Respondent’s Blocking Of Petitioner Was Not State

Action

Under the foregoing principles, respondent’s blocking of petitioner from his Facebook account was not

state action. Here, a public official has denied access to

private property over which the government lacks ownership or control. Respondent’s Facebook account indisputably is private property. Respondent created

that account when he was a college student and converted his profile into a publicly accessible page before

he was appointed as city manager for Port Huron. Pet.

App. 2a; see pp. 2-3, supra. The account uses respond-

18

ent’s own name, not his public office, as the page title

and username. Pet. App. 9a, 14a. And respondent

would continue to exercise exclusive control over that

account even if he ceased to be the city manager. Id. at

9a. Respondent’s job did not require him to operate a

Facebook page. Id. at 8a-9a. Respondent did not use

government employees or resources to maintain his Facebook page; none of his staff had access to the page;

and he did not even post on the page using government

devices. Id. at 10a; see p. 4, supra. As purely private

property beyond the city’s control, respondent’s Facebook account is unlike an official government-controlled

account, such as the Port Huron Police Department’s

Facebook page. See J.A. 30.

Nor can it be said that in using that nongovernmental account to communicate with constituents, respondent was performing a traditional, exclusive public function. Of course, public officials have a long tradition of

communicating with the public about matters of public

concern. But the Court has explained that “to qualify

as a traditional, exclusive public function within the

meaning of [this Court’s] state-action precedents, the

government must have traditionally and exclusively

performed the function.” Manhattan Community Access, 139 S. Ct. at 1929. When public officials communicate with the public, they do not “exercise[] ‘powers traditionally exclusively reserved to the State.’ ” Id. at

1928 (emphasis added; citation omitted). Quite the contrary. The First Amendment expressly prohibits the

government from reserving such powers to itself. And

others—including nonincumbent seekers of public office, members of the media, and private citizens—also

communicate with the public about the work of public

officials and employees.

19

Respondent’s operation of his Facebook account

thus does not constitute “the exercise of some right or

privilege created by the State.” American Manufacturers, 526 U.S. at 50 (citation omitted). Instead, any

right or privilege that respondent has to operate that

account—including to block petitioner—flows from his

personal ownership or control of the account (per the

terms of service and functionality provided by Facebook), irrespective of his status as a city official.

For the same reason, respondent cannot “fairly be

said” to have been a state actor when he blocked petitioner. American Manufacturers, 526 U.S. at 50 (emphasis added; citation omitted). Although respondent

was a public official at the time, his power to operate his

personal social-media account was neither a “power

‘possessed by virtue of state law,’ ” nor one that was

“made possible only because [respondent was] clothed

with the authority of state law.” West, 487 U.S. at 49

(citation omitted). Nor was respondent acting in his official capacity to “exercis[e] his responsibilities pursuant to state law” when he operated his Facebook page,

including when blocking petitioner. Id. at 50; see id. at

49-50. Instead, like many individuals, respondent

sought to inform others about his work and to address

issues of public concern—in part to further his own

career—and he chose to use his personal social-media

page as one communications channel.

To be sure, some of the content of the communications on respondent’s Facebook page reflected his

unique status as city manager, and he prominently identified himself as such (including by listing his official position and other trappings, such as the city’s website

and a city email address, and by identifying himself with

city initiatives, such as by describing the City’s actions

20

as steps that “we” took). See J.A. 1-2; see also, e.g., J.A.

164. But public officials, no less than private individuals, retain the right in their private capacities to engage

in speech “ ‘commenting upon matters of public concern,’ ” including discussing “information acquired by

virtue of [their] public employment.” Lane v. Franks,

573 U.S. 228, 231, 240 (2014) (citation omitted). And in

that private capacity, they retain the rights that private

individuals and entities enjoy to “exercise editorial control over speech and speakers on their properties or

platforms.” Manhattan Community Access, 139 S. Ct.

at 1932. As the court of appeals explained, “[w]hen [respondent] visits the hardware store, chats with neighbors, or attends church services, he isn’t engaged in

state action merely because he’s ‘communicating’—

even if he’s talking about his job.” Pet. App. 9a. Speech

in those private spaces does not become state action

simply because of its subject matter.

For those reasons, excluding petitioner from those

conversations, when held on properties over which the

government lacks ownership or control, is not state action. Cf. Biden v. Knight First Amendment Institute,

141 S. Ct. 1220, 1222 (2021) (Thomas, J., concurring)

(“[G]overnment officials who informally gather with

constituents in a hotel bar can ask the hotel to remove a

pesky patron who elbows into the gathering to loudly

voice his views.”). That conclusion should not change

simply because the private property at issue here is virtual rather than physical: Just as respondent would be

free to remove a dinner guest from his home for expressing unwanted views about Port Huron’s pandemic

response, respondent was free to block petitioner from

respondent’s personal Facebook page.

21

C. Petitioner’s Contrary Reasoning Is Unpersuasive

Petitioner’s arguments to the contrary lack merit.

1. Petitioner relies heavily on the history of 42

U.S.C. 1983, urging (Pet. Br. 19-25) that its “under color

of law” requirement—and state action under the

Constitution—extends to situations where an official

acts under pretense of law. That assertion is correct but

has little bearing here. “Acts of officers who undertake

to perform their official duties are included whether

they hew to the line of their authority or overstep it.”

Screws, 325 U.S. at 111 (plurality opinion). At the same

time, “acts of officers in the ambit of their personal pursuits are plainly excluded.” Ibid.

For that reason, although state action does not require an official to hew to state law, state action does

require “[m]isuse of power, possessed by virtue of state

law and made possible only because the wrongdoer is

clothed with the authority of state law.” Monroe v.

Pape, 365 U.S. 167, 184 (1961) (citation omitted). Unlike

entering a person’s home to conduct a search, see, e.g.,

id. at 169, or invoking official authority to conduct an

arrest, see, e.g., Screws, 325 U.S. at 92 (plurality opinion); Griffin v. Maryland, 378 U.S. 130 (1964), an official who is operating a privately owned Facebook page

does not exercise—and so does not abuse or exceed—

any power “possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the

authority of state law,” West, 487 U.S. at 49 (quoting

Classic, 313 U.S. at 326).

In resisting that straightforward application of this

Court’s precedents, petitioner relies (Br. 34-35) on Griffin. In that case, the defendants challenged their

criminal-trespass convictions, incurred for conduct in

protesting a private amusement park’s racial-

22

segregation policy. Griffin, 378 U.S. at 131. The park

employed a security guard who had also been deputized

by the county police department as a special deputy

sheriff; in that capacity, he had the “ ‘same power and

authority as [a] deputy sheriff [],’” and he “wore, on the

outside of his uniform, a deputy sheriff ’s badge.” Id. at

132 & n.1 (citation omitted). When the defendants

boarded a ride at the amusement park, the security

guard “ordered [them] to leave,” informing them “that

it was the park’s policy ‘not to have colored people on

the rides, or in the park.’ ” Id. at 132. When defendants

declined to leave the park, the guard informed them

that “they were under arrest for trespassing,” and he

“transported” them to the police station. Id. at 133. In

doing so, he “consistently identified himself as a deputy

sheriff rather than as an employee of the park.” Id. at

135. At the police station, he filled out an “Application

for Warrant by Police Officer” form that declared, under oath, that he was a member of the county “deputy

sheriff department,” and that, “as a member of the

Montgomery County Police Department,” he observed

certain conduct and believed that defendants were violating a state criminal-trespass statute. Id. at 133 (emphasis omitted). After charges were issued by a justice

of the peace, an amended warrant was filed, which described the guard as “Deputy Sheriff,” but characterized defendants’ conduct as “unlawfully entering the

park after having been told not to do so by ‘an Agent,’

of the corporation which operated the park.” Id. at 134.

This Court held that the amended warrant had “little, if

any, bearing on the character of the authority which

[the guard] initially purported to exercise,” that his conduct amounted to state action, and that his participation

in enforcing a policy of racial segregation violated the

23

defendants’ Fourteen Amendment equal-protection

rights. Id. at 135-136.

In petitioner’s view, Griffin shows that this Court’s

statement in West that state action “requires” the exercise of power “ ‘made possible only because the wrongdoer is clothed with the authority of state law,’ ” 487

U.S. at 49 (citation omitted), cannot be taken literally,

because he says that the security guard in Griffin

“could have undertaken the same conduct even in absence of his governmental powers.” Pet. Br. 34 (emphasis omitted). But in finding state action, the Griffin

Court explained that the power that the guard, as a special deputy sheriff, “initially purported to exercise” in

ejecting the defendants from the park and transporting

them to the county police station was an exercise—and

misuse—of official power. 378 U.S. at 135. Ordering

individuals to leave and carrying out an arrest while

“w[earing] a sheriff ’s badge and consistently identif [ying] [one]self as a deputy sheriff ” is the exercise of

a power possessed by virtue of state law. Ibid. And that

is so even though citizen arrests are authorized in some

circumstances. It is easy to see why. As the court of

appeals explained, “[w]e’re generally taught to stop for

police, to listen to police, to provide information police

request.” Pet. App. 12a. Although a private security

guard, and at times an ordinary private citizen, can take

superficially similar actions, the act of invoking an official status as a formally deputized officer of the county

when conducting an arrest or otherwise demanding submission transforms the character of the authority exercised, whether it occurs on public or private property.

Providing information about governmental actions

and policies, by contrast, does not exercise a power that

is “made possible only because the” speaker “is clothed

24

with the authority of state law.” West, 487 U.S. at 49

(citation omitted). The government does not have a monopoly on discussing non-confidential information about

its activities. Even apart from social-media accounts associated with traditional media outlets for news, accounts that seek to amplify or aggregate information

about official activities abound. See, e.g., @oyez on X

(formerly known as Twitter), https://twitter.com/oyez

(providing argument audio and other materials related

to this Court); @HouseFloor on X, https://twitter.com/

housefloor (providing updates about the official business of the U.S. House of Representatives); @CoCapWatch on X, https://twitter.com/cocapwatch (tracking

bills in the Colorado legislature). Individuals who serve

as public officials may likewise wish to discuss official

activities. They might do so for purposes of their own

reputation or career advancement—such as when an assistant district attorney links to a press release announcing a successful conviction on her LinkedIn page,

or when an elected official describes her accomplishments on a Facebook page owned by her campaign. Or

they might do so out of a desire to help their communities by amplifying information they view as important,

or simply out of an interest in discussing topics that

overlap with the subject matter of their jobs.

Petitioner suggests that when a public official emphasizes his official role in communicating otherwise

publicly available information, “invoking the ‘prestige’

of [his] office” might give “additional weight and influence” to his views. Br. 39 (citation omitted). In petitioner’s view, that transforms the public official’s action

just as the coercive authority exercised by an individual

is transformed when he invokes his status as a lawenforcement officer. Ibid. But that is a false equiva-

25

lence. Nobody is required to view or comment on a city

manager’s Facebook posts, no matter how official-looking the page might appear. To be sure, a public official’s

expression may carry more clout, and a public official

may have speaking opportunities, including invitations

by private groups, that the average citizen might not

have. But that does not automatically convert otherwise private speech activities into state action subject

to constitutional constraints.

Indeed, as this Court has repeatedly made clear,

“citizens do not surrender their First Amendment

rights by accepting public employment.” Lane, 573

U.S. at 231; see, e.g., Pickering v. Board of Education,

391 U.S. 563, 568 (1968). Outside the scope of their ordinary job responsibilities, public employees retain the

“right to disseminate” information “related to or

learned through public employment,” and that right

also benefits “the public’s interest in receiving informed

opinion.” Lane, 573 U.S. at 236 (citation and internal

quotation marks omitted). That assurance would ring

hollow if a public official lost the right “as a citizen,” id.

at 238, to discuss office initiatives at a dinner hosted at

a friend’s house, at a church happy hour, at a private

country club, in a ballroom rented by her campaign, or

in front of a local grocery store whenever the audience,

knowing the speaker’s official position, would give such

views additional weight and influence.

The same is true for the large group of public officials who have, among their responsibilities, some role

in “keep[ing] constituents apprised” about government

actions and “engag[ing] with the public” on matters of

public concern, Pet. Br. 30. Those officials do not lose

their right to communicate with the public about matters of public concern in their private capacity. Of

26

course, to the extent that an official communicates using

a platform that the government owns or controls—for

instance, holding a press conference at City Hall, using

a government website, or posting on an official socialmedia account—the communication relies on the exercise of a power made available only by virtue of the official position. But if the official communicates the same

information on private property without using official

resources, those communications will generally not

amount to state action.

2. For similar reasons, petitioner’s proposed “appearance” and “function” test, see Br. 30-32, is not the

right approach for identifying state action in a public

official’s operation of a social-media profile. As the

court of appeals explained (Pet. App. 11a) appearance

might be relevant in cases involving police officers

who abuse their authority (say, by flashing badges) because the officers’ “appearance actually evokes state

authority”—but it has no bearing in this context. See

U.S. O’Connor-Ratcliff Br. at 26-27. And although

state action may be found where the public official is

carrying out his official duties (which respondent was

not doing here, see Pet. App. 8a-9a), that is not what

petitioner means by “function.” Instead, he uses that

term to refer to the purpose of the social-media use, inquiring whether it is one a state actor might share. See

Pet. Br. 31 (referring to the test as the “appearance and

purpose” test); see id. at 32 (measuring function by how

similar the private account is to a hypothetical official

account).

That approach provides no workable standard for

public officials to measure when their conduct becomes

subject to constitutional constraints. Petitioner never

elaborates what standards a public official should use in

27

assessing whether the appearance and purpose of a

communication treads so close to matters that relate to

the official’s employment that the official should be on

notice that constitutional requirements apply. Indeed,

rather than offering a test that would avoid serious

chilling effects on public officials, petitioner urges (Br.

16-19, 40) the Court to issue a narrow decision that

would provide little guidance. Petitioner claims (Br. 42)

that respondent crossed the line here because “City

business dominated [respondent’s] Facebook page” in

the early weeks of the pandemic and “garnered increased public attention and feedback,” but petitioner

provides no guideposts for a court to evaluate how many

posts about “City business” are too many, or how much

“attention and feedback” is too much. Nor does petitioner offer guidance on how an official could identify

what content is related to business in the first place. On

petitioner’s view, for instance, a photo of respondent’s

daughter playing at home during the pandemic becomes

official in character when it urges the reader to “[s]tay

home” and “[s]tay safe,” because that overlaps with a

message the city may wish to convey, see ibid.—even

though countless privately employed individuals made

similar remarks in the pandemic’s early days.

Petitioner’s amorphous “appearance and purpose”

standard would inevitably chill public officials’ speech—

even when on private time and using private property—

for fear of potential lawsuits and damages liability,

thereby infringing on the “robust sphere of individual

liberty” that “the state-action doctrine protects,” Manhattan Community Access, 139 S. Ct. at 1928. See Cert.

Reply Br. 9 (suggesting that even in this case, which

warranted this Court’s intervention, “qualified immunity does not apply” and that money damages are availa-

28

ble against respondent). Tellingly, although petitioner

dismisses as “far-fetched” the suggestion that an official’s speech with a neighbor at a hardware store or at

church will be deemed state action under his approach,

Br. 40, petitioner offers no principled basis for distinguishing those conversations, which can be intimately

connected to the official’s job and which will often carry

more weight and influence than would views expressed

during similar conversations with those who are not

public officials. Compare, e.g., Pet. Br. 41 (suggesting

that respondent’s answers to some comments asking for

information about city policies are indicative of state action), D. Ct. Doc. 23-2, at 14 (testimony by respondent

that he answered those questions “[l]ike I would with

anyone, if a neighbor asked me or something like that[;]

I knew the answer so, yes, I responded back”).

Although petitioner suggests (Br. 32) that the appearance of a social-media page can illustrate that the

official is “deliberately” blurring the line between official and private social-media use, the test he proposes

does not actually require the defendant to have a particular state of mind. Even if it did, adding a subjective

component to the state-action inquiry finds no support

in this Court’s precedents, and would potentially require many or most cases to proceed to discovery to

probe the defendants’ subjective beliefs about the purposes of their social-media use in order to answer the

threshold state-action question. In any event, even if it

were relevant whether officials are deliberate in blurring the official–private line, respondent here testified,

without contradiction, that “if [he] couldn’t use [the Facebook page] as a personal page, [he] wouldn’t have had

one” because he “d[id]n’t want an official city manager

page.” D. Ct. Doc. 23-2, at 18-19; see Pet. App. 24a-25a.

29

3. Petitioner does not identify any persuasive reason

to reject a “property-based” approach, such as the one

offered by the government. See Pet. Br. 36-38; pp. 1221, supra. Petitioner first suggests that the nature of

the property cannot matter to the state-action inquiry

because it is relevant to the First Amendment question

whether the page in question was a “temporary public

forum.” Br. 37 (brackets omitted). But there is no reason that certain considerations cannot be relevant to

both questions. For instance, “the public’s likely perception as to who (the government or a private person)

is speaking” is relevant to the First Amendment question whether the government is speaking for itself.

Shurtleff v. City of Boston, 142 S. Ct. 1583, 1589-1590

(2022). But it also bears a close resemblance to petitioner’s proposed inquiry (Br. 40-41) into whether a

social-media account “convey[ed] the impression that”

it “was an official communication.”

Petitioner next relies (Br. 37) on Marsh, supra, for

the proposition that the status of the property interests

cannot settle the question of state action. But, as explained above, see p. 15, supra, Marsh addressed the

economic anachronism of a company town and presented a highly unusual situation where, unlike here,

ownership and control of property carry less weight.

Finally, petitioner raises (Br. 37-38) the specter that

a property-based approach would too easily permit the

government to evade First Amendment constraints.

But none of his examples support that fear. If, as petitioner posits (Br. 37), a town “temporarily relocate[d]

its public meetings to the home of a councilmember,”

that would be an example of using private property for

a traditional, exclusive public function, such that state

action would exist even on private property, see p. 13,

30

supra. Petitioner suggests (Br. 37) that officials might

have a “perverse incentive * * * to use their personal

accounts in order to evade their constitutional obligations.” But an official who uses a personal account for a

traditional and exclusive public function, or to carry out

his official job responsibilities by exercising his governmental authority, or who uses meaningful government

resources to maintain a personal account, will, under

our proposed framework, have usually engaged in state

action. By contrast, if the official neither discharges official obligations through his account nor uses public resources to operate it, there is nothing nefarious about

the official’s maintaining a social-media account, even

one discussing the subject matter of his job, in a private

capacity, with the concomitant right to exclude those

whose comments he does not wish to display on his

page.

D. An Overly Expansive Theory Of State Action In This

Context Would Undermine, Not Promote, First Amendment Values

As the analysis above indicates, this Court’s precedents wisely reflect a limited theory of state action in

this context. Whether particular conduct constitutes

state action (or is under color of state law) determines

the applicability of a variety of constitutional constraints. See, e.g., Manhattan Community Access, supra (First Amendment); Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989) (Fourth

Amendment); Public Utilities Commission v. Pollak,

343 U.S. 451 (1952) (Fifth Amendment); West, supra

(Eighth Amendment); Blum v. Yaretsky, 457 U.S. 991,

996 (1982) (procedural due process under Fourteenth

Amendment); Griffin, supra (equal protection under

Fourteenth Amendment); Nixon v. Condon, 286 U.S. 73

31

(1932) (Fifteenth Amendment). An appropriately limited state-action doctrine “ ‘preserves an area of individual freedom by limiting the reach of federal law’ and

avoids the imposition of responsibility on a State for

conduct it could not control.” NCAA v. Tarkanian, 488

U.S. 179, 191 (1988) (citation omitted).

That salutary aim is especially important in the First

Amendment context. This Court has explained that an

overly expansive “theory of state action” “would be especially problematic in the speech context, because it

could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their

properties or platforms.” Manhattan Community Access, 139 S. Ct. at 1932. The same holds true for public

officials and employees like respondent.

Moreover, subjecting large amounts of the speech of

public officials and employees to constitutional restrictions could make those officials and employees less

willing to speak in the first place. That sort of chilling

effect would thus reduce, not enhance, free speech and

public discourse. Indeed, respondent testified that “he

would not have operated a Facebook page if he could

not use it as his personal account or if he were required

to allow all comments on the page.” Pet. App. 24a-25a

(citing D. Ct. Doc. 23-2, at 18-19). It is hard to see how,

on balance, that promotes First Amendment values.

In addition, an overly expansive theory of state action in this context might well lead to overregulation of

public employees’ speech. As this Court has recognized,

government “[e]mployers have heightened interests in

controlling speech made by an employee in his or her

professional capacity.” Garcetti v. Ceballos, 547 U.S.

410, 422 (2006). To say that the speech of a public employee on a personal social-media account constitutes

32

state action—meaning that the speech is “fairly attributable to the [government],” Lugar, 457 U.S. at

937—would be to say that the government could regulate the content of that speech. See Garcetti, 547 U.S.

at 422-423; cf. Pickering, 391 U.S. at 573-574. And because many government employers are potentially exposed to liability whenever their employees engage in

state action, see Monell v. Department of Social Services, 436 U.S. 658 (1978), the urge to regulate would be

substantial. Again, it is difficult to see how that would

promote First Amendment values.

At the same time, an expansive state-action theory

would carry few if any benefits in this context because

a plaintiff who is blocked from a public official’s socialmedia account is unlikely to prevail under substantive

First Amendment law even if he can show that the

blocking constitutes state action. For example, when

the government itself is doing the speaking, it may craft

its own message and exclude others from the opportunity to present dissenting views. See Shurtleff, 142

S. Ct. at 1587, 1589. So if public-official defendants were

to assert, as respondent did here, that they intended to

use their social-media accounts to provide one-way communication from themselves to those following their accounts, and not to “invite” responses there, Pet. App.

27a; D. Ct. Doc. 23-2, at 11-12, and that assertion were

credited, then a finding that the officials engaged in

state action might well imply that the posts on their accounts (including the comments attached to the posts)

constituted government speech outside the reach of the

First Amendment’s speech constraints. See Pleasant

Grove City v. Summum, 555 U.S. 460, 467 (2009) (“The

Free Speech Clause restricts government regulation of

33

private speech; it does not regulate government

speech.”).

The point here is not to engage in substantive First

Amendment analysis, which is beyond the scope of the

question presented. See Pet. Br. I, 16-43 (addressing

only state action). Instead, the point is that there is little to be gained, and much to be lost, by adopting an

overly expansive theory of state action that would extend to the use of nearly every public official’s private

social-media account. As noted, that scenario would undermine, not promote, First Amendment values, and as

a practical matter the end result of any litigation would

likely be the same as under a more constrained theory

of state action.

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

CURTIS E. GANNON

Deputy Solicitor General

SOPAN JOSHI

MASHA G. HANSFORD

Assistants to the Solicitor

General

DANIEL TENNY

JENNIFER L. UTRECHT

Attorneys

AUGUST 2023