Lindke v. Freed (22-611)

argument 22-611

Lindke v. Freed

Supreme Court of the United States 1h 17m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What constitutional test does the Court use to determine if a public official’s social‑media page is a state‑action channel?

John G. Roberts 0:00

We'll hear argument next in Case 22-611, Linkey

Mr. Keaton 0:05

v. Freed.

John G. Roberts 0:06

Mr. Keatom?

Mr. Keaton 0:08

Mr. Chief Justice, and may it please the Court, the dialogue between public officials and their constituents is fundamental to our democracy. Much of that conversation now takes place online, with social media platforms serving as the new town square. where public officials provide important information about what they're doing on the public's behalf and soliciting comments in return. While public officials retain First Amendment rights, use of a private social media account does not immunize an official's conduct from First Amendment or constitutional scrutiny. Under our test for state action, a public official who creates a channel for communicating with constituents about in-office conduct and then blocks a user from that channel must abide by the Constitution.

Mr. Keaton 0:57

This test, which focuses on how the public official is using and purporting to use that account, is consistent with this Court's precedent under which a public official who purports to act in that capacity is a State actor. It also accords with Section 1983 and the original understanding of what it means to act under color of law. The Sixth Circuit's duty and authority test, by contrast, would provide ready means for public officials to evade the Constitution. Here, for instance, it would mean that the city manager would be free to block from his Facebook page any constituent who was a member of a disfavored race, religion, or political group. free from constitutional constraint. Our test avoids that result while still leaving ample room for public officials to communicate in their personal capacities.

Mr. Keaton 1:49

I welcome the Court's questions.

Clarence Thomas 1:51

Would you also win under the doing their jobs test?

Mr. Keaton 1:57

Yes, we absolutely would, in part because, as has been pointed out, part of the job of any high-ranking executive official and the city manager is essentially just under the mayor in terms of being high up in city government, part of that job is telling people about what you're doing. And what Mr. Freed was doing with his Facebook account, sometimes multiple times a day, was informing the citizens about what he, as city manager, in his role as city manager, was doing for the town, and then communicating directly with constituents about that, sometimes answering their questions about the scope of his orders.

Clarence Thomas 2:32

All right. But Ms. Carlin made the point that there are only three instances on the website there in the last case that were personal. In this case, just going through the joint appendix, there's quite a bit that is personal. So how would you just factually distinguish that or emphasize the fact that the personal here does not override the official? Sure.

Mr. Keaton 3:00

So there were certainly a lot more personal posts, although the ratio of job-related posts to personal posts changed dramatically at the start of the pandemic, as you would expect, because a lot of the services and the way that he was doing his job migrated online. I think once you've established a channel for communicating with constituents about your job, I don't think also posting sometimes about your family is going to undo that. Although if what you're complaining about in a specific case is being is having a comment on a personal post deleted, obviously that would change the equation.

Ketanji Brown Jackson 3:34

Does it matter if you've established this channel ahead of time and before you became a public official? I mean, you sort of suggested that it had to do with the purpose of the account.

Mr. Keaton 3:45

So I think you would look at what you were doing with the page beforehand, or you could, I suppose. But I think it's fairly clear that Mr. Freed wasn't talking about the job of the city manager before he actually became city manager. He wasn't posting about directives that he himself issued until

Ketanji Brown Jackson 4:00

he had that power. Right, but I guess I'm asking, does it matter whether or not he opens up a new page once he becomes the city manager and begins conversing in the way that we're talking about? Or, alternatively, he had this page before he became city manager.