By: Morgan Ryan*
Abstract
When is the last time you thought about the constitutional implications of your social media activity? With social media use surging, courts face an increasing number of First Amendment cases involving government officials’ social media activity.
When a citizen thinks a government official violated their First Amendment rights, that citizen may bring suit under 42 U.S.C. § 1983. To prove liability, the aggrieved citizen must show that the government official acted in their official capacity when performing the alleged harmful activity. This obligation is labeled the “state action requirement.”
The Sixth Circuit recently created a circuit split regarding how to address the state action requirement. The Second, Fourth, Eighth, Ninth, and Eleventh Circuits apply the “purpose and appearance” test, focusing on the purpose and appearance of the government official’s social media account. However, in the 2022 case of Lindke v. Freed, the Sixth Circuit declined to apply the “purpose and appearance” test. The Sixth Circuit instead applied the “state-official” test, asking whether the government official’s social media account was part of their duties or used government resources.
The “state-official” test presents two major benefits: (1) it is more predictable in its application, and (2) it is more flexible and adaptable to changing technology. In the rapidly changing world of social media, current and future courts will find these benefits important.
Some circuits have yet to face the novel question of how to address the state action requirement of a government official’s social media use. Lindke demonstrates why these circuits should adopt the state-official test.
* J.D. Candidate, The Pennsylvania State University School of Law, 2024.