First Amendment Clinic director Clare R. Norins and clinic alum Mark L. Bailey (JD ’22) critique the Supreme Court’s new state action test in Stitch Incoming: Lindke v. Freed’s Impact on Social-Media-Blocking Litigation, 82 Wash. & Lee L. Rev. Online 172 (2024).

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering First Amendment scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In applying the second prong of this test, the Court’s default presumption is that a government official’s job-related post on her personal social media account is private speech, unless the plaintiff can show substantial evidence that the official was intending to exercise her state authority. The article explains why this subjective-intent standard will usually be impossible for the plaintiff to prove and will too readily allow public officials to censor viewpoints they dislike, leading to unacceptable levels of chilled political speech. Norins and Bailey urge the Court to adopt, instead, an objective standard that asks whether the “reasonable viewer” reading the social media post would understand the government official to be exercising her state authority. This “reasonable viewer” standard is more in line with the Supreme Court’s prior state-action decisions and better harmonizes with First Amendment jurisprudence that requires public officials to have a thick skin in the face of public criticism related to their jobs.

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The Issue

Free Speech

The First Amendment protects the right of private individuals to engage in speech and expression without being censored or punished by the government because of their viewpoint. While the government may constitutionally regulate the time, place, and manner of private speech in public forums it must do so in a viewpoint-neutral manner and, depending on…

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The Issue

Social Media Blocking

The First Amendment protects speech on social media platforms that have been designated as public forums by government officials or agencies. Government officials cannot block individuals from accessing their social media pages simply because the government dislikes or disagrees with their speech. Read more about our work protecting citizen speech here.

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