Can You Block the Public from Posting?

SOCIAL MEDIA

Lawyers often describe social media as the “Wild West” because the law is prone to lagging behind technology. In a recent opinion, the U.S. Supreme Court caught up, at least in one area.

The court’s opinion in Lindke v. Freed announced a new test to determine whether an elected official or public employee’s use of social media is private and therefore exempt from First Amendment free-speech obligations. This is relevant because the First Amendment only protects the public from state action and does not insulate the public from actions of private individuals who might censor speech. The Lindke decision clarifies how public employees can engage in free speech over social media, while ensuring the public’s First Amendment rights are protected as well.

Lindke actually resolved two lower court decisions. In O’Connor-Ratcliff v. Garnier, the Ninth Circuit Court of Appeals held that two school board members violated the First Amendment when they blocked two members of the public from their personal social media accounts because they appeared to be official school district accounts.