School Law Alerts

U.S. Supreme Court provides guidance for public officials on social media; “Blocking” individuals not always a First Amendment violation

Posted by Daniel R. Shisler | Apr 04, 2024 | 0 Comments

On March 15, 2024, the Supreme Court of the United States ruled on whether public officials may delete comments or “block” individuals on personal social media pages without violating the individuals' First Amendment rights.

The case, Lindke v. Freed, makes clear that a bright-line rule is difficult to establish. Rather, courts must engage in a fact-intensive examination, as a “close look is definitely necessary in the context of a public official using social media.”  The Supreme Court established a two-prong test for determining whether actions like deleting comments or blocking individuals on social media violates the First Amendment. First, the public official must have actual authority to speak on behalf of the office or agency on a particular matter. Second, the official must purport to exercise that authority in the relevant actions on social media.

As a preliminary matter, the Supreme Court notes that this test is tailored for “mixed use” social media pages – where an official posts content relating to both their personal lives and to their role as a public official. The Court advises that public officials using proper disclaimers like “the views expressed herein are my own,” on their social media pages are entitled to a strong (but not irrebuttable) presumption that they are speaking in their personal, not official capacity.

In the context of public schools in Ohio, this case applies to board members as elected officials but may also find some applicability to superintendents or other high-level administrators. Under Lindke v. Freed, board members who share district-related content on their personal social media pages should feel empowered to police their personal pages as they see fit.  Under Ohio law, individual board members do not generally have authority to act or speak on behalf of the board as a whole.  Thus, the actions of individual board members on social media most likely will not satisfy the first prong of the test. Some exceptions, however, may apply, so if you have a question, it is advisable to consult with legal counsel. Likewise, high-level administrators (e.g., the superintendent, treasurer, or a building principal) should carefully analyze the above-two prong test before blocking or deleting comments from their mixed-use social media accounts.

Administrators of official school district social media pages should take care to understand that the Supreme Court's ruling does not apply to official pages, as those pages are expressly created as outlets for official district communications.  With respect to official pages, administrators are encouraged to consult legal counsel prior to blocking individuals or deleting comments, as such action is more likely to have First Amendment ramifications.

About the Author

Daniel R. Shisler

Daniel Shisler's practice is devoted to advising boards of education on matters including board policy formation and compliance, general labor and employment/ personnel issues, employment discrimination, workers compensation, unemployment compensation, student/pupil personnel legal issues, residency issues, board policy, and ethics/conflict of interest issues. Daniel has experience representing boards of education in litigation in both state and federal courts regarding employment discrimination, employee discipline, termination and nonrenewal, statutory immunity issues, and student disciplinary appeals.


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