Lindke v. Freed, 218 L. Ed. 2d 121 (March 15, 2024) (Barrett, J.).
Like millions of Americans, James Freed maintained a Facebook account on which he posted about a wide range of topics, including his family and his job. Like most of those Americans, Freed occasionally received unwelcome comments on his posts. In response, Freed took a step familiar to Facebook users: He deleted the comments and blocked those who made them.
For most people with a Facebook account, that would have been the end of it. But Kevin Lindke, one of the unwelcome commenters, sued Freed for violating his right to free speech. Because the First Amendment binds only the government, this claim is a nonstarter if Freed posted as a private citizen. Freed, however, is not only a private citizen but also the city manager of Port Huron, Michigan—and while Freed insists that his Facebook account was strictly personal, Lindke argues that Freed acted in his official capacity when he silenced Lindke’s speech.
When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.
Lindke sued Freed under 42 U. S. C. §1983, alleging that Freed had violated his First Amendment rights. As Lindke saw it, he had the right to comment on Freed’s Facebook page, which he characterized as a public forum. Freed, Lindke claimed, had engaged in impermissible viewpoint discrimination by deleting unfavorable comments and blocking the people who made them.
By and large, our state-action precedents have grappled with variations of the question posed in Griffin v. Maryland, 378 U.S. 130 (1964) : whether a nominally private person has engaged in state action for purposes of §1983. See, e.g., Marsh v. Alabama, 326 U. S. 501, 502-503, 66 S. Ct. 276, 90 L. Ed. 265 (1946) (company town); Adickes v. S. H. Kress & Co., 398 U. S. 144, 146-147, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970) (restaurant); Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 151-152, 98 S. Ct. 1729, 56 L. Ed. 2d 185 (1978) (warehouse company). Today’s case, by contrast, requires us to analyze whether a state official engaged in state action or functioned as a private citizen. This Court has had little occasion to consider how the state-action requirement applies in this circumstance.
Lindke cannot hang his hat on Freed’s status as a state employee. The distinction between private conduct and state action turns on substance, not labels: Private parties can act with the authority of the State, and state officials have private lives and their own constitutional rights. Categorizing conduct, therefore, can require a close look.
A public official’s social-media activity constitutes state action under §1983 only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media. The appearance and function of the social-media activity are relevant at the second step, but they cannot make up for a lack of state authority at the first.
Freed’s conduct is not attributable to the State unless he was “possessed of state authority” to post city updates and register citizen concerns. Griffin, 378 U. S., at 135, 84 S. Ct. 1770, 12 L. Ed. 2d 754. If the State did not entrust Freed with these responsibilities, it cannot “fairly be blamed” for the way he discharged them. Lugar, 457 U. S., at 936, 102 S. Ct. 2744, 73 L. Ed. 2d 482. Lindke imagines that Freed can conjure the power of the State through his own efforts. Yet the presence of state authority must be real, not a mirage.
Importantly, Lindke must show more than that Freed had some authority to communicate with residents on behalf of Port Huron. The alleged censorship must be connected to speech on a matter within Freed’s bailiwick. For example, imagine that Freed posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to Freed’s state authority—because he had none. For state action to exist, the State must be “responsible for the specific conduct of which the plaintiff complains.” Blum v. Yaretsky, 457 U. S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982) (emphasis deleted). There must be a tie between the official’s authority and “the gravamen of the plaintiff ’s complaint.” Id., at 1003, 102 S. Ct. 2777, 73 L. Ed. 2d 534.
A city manager like Freed would be authorized to speak for the city if written law like an ordinance empowered him to make official announcements. He would also have that authority even in the absence of written law if, for instance, prior city managers have purported to speak on its behalf and have been recognized to have that authority for so long that the manager’s power to do so has become “permanent and well settled.” Id., at 168, 90 S. Ct. 1598, 26 L. Ed. 2d 142. And if an official has authority to speak for the State, he may have the authority to do so on social media even if the law does not make that explicit.
In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State. That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action.
A public official might be unable to prevent someone from commenting on his personal posts without risking liability for also preventing comments on his official posts. A public official who fails to keep personal posts in a clearly designated personal account therefore exposes himself to greater potential liability.
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The state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts. To the extent that this test differs from the one applied by the Sixth Circuit, we vacate its judgment and remand the case for further proceedings consistent with this opinion.
