People across the political spectrum in the U.S. are quick to complain whenever they believe their freedom of speech is being violated. Given the important role of social media in the public sphere as well as our private lives, many of these complaints arise when public officials delete critical comments or block users from social media accounts. The U.S. Supreme Court has laid out some rules on when this is allowed and when it’s a violation of free speech rights.
How the First Amendment Applies to Social Media
For many of us, social media has become the main way we learn about news and share our opinions on important issues. At the same time, government agencies and elected officials often use social media accounts as the main way they communicate with the public. As the U.S. Supreme Court recognized in a 2017 case, social media has become “the modern public square”—a powerful tool for ordinary people to exercise their First Amendment rights to freedom of speech, by petitioning their elected representatives and making their voices heard on a wide scale (Packingham v. North Carolina, 137 S.Ct. 1730 (2017)).
But agencies and officials often delete critical comments posted on their social media accounts—or completely block the constituents who made those comments. Some of those constituents have filed lawsuits, claiming that being blocked for voicing their opinion is a violation of their free speech rights, like being thrown out of a town hall meeting for saying something a politician doesn’t like. That argument raises several questions, especially:
- Are the social media accounts essentially carrying out official governmental actions?
- If so, are those accounts public forums for free speech?
Private vs. Official Social Media Accounts
The First Amendment’s free-speech protections apply only to censorship by government. That means private individuals or businesses may delete comments or block users from their social media accounts for any reason.
Of course, people who happen to have jobs with the government often have social media accounts where they post pictures, videos, and updates about their families and personal lives, as well as their opinions on everything from the news to sports teams. But the lines between official and private accounts may be blurred when public officials use these personal accounts at least partly for official reasons—for instance, by announcing policy changes or inviting feedback from the public about proposed policies.
If officials block constituents from commenting on their accounts, are they acting in their official governmental capacity, or are they simply exercising their own free speech rights as private citizens to control what appears on their Facebook or Instagram page? The U.S. Supreme Court has laid out a standard for answering that question.
In Lindke v. Freed, 601 U.S. ___ (2024), the High Court held that public officials who prevent someone from commenting on their social media accounts are acting in their official, governmental capacity only if they:
- have the actual authority (under written laws or longstanding custom) to speak on behalf of the government, and
- intend to exercise that authority on social media.
The justices cautioned that it will often require a "close look" at the specific circumstances, including the content and function of posts, to determine if both of those requirements are met. For example:
- If the social media account is clearly labeled as personal, courts may at least presume that the posts aren't official.
- If posts make announcements about governmental policies or actions that aren't available elsewhere, they'll probably be considered official.
- If the account mixes official and personal posts, courts may have to consider the effect of blocking constituents from commenting on the entire page, rather than on just the personal posts.
It remains to be seen how lower courts will apply the Lindke standard in particular cases.
When Social Media Is Used as a Public Forum
Even if a social media site is maintained as an official government tool, it may not be a public forum for purposes of free speech. For instance, government agencies don’t have to let citizens voice their opinions on official websites that are meant only to pass on information. But the picture changes once public agencies or officials set up sites or accounts that allow people to post comments and voice their opinions freely. Although there may be reasonable restrictions on things like vulgarity or spam, these official sites and accounts may not delete comments or block users just because they don’t like the opinions being expressed—what’s known as “viewpoint discrimination.”
Getting Help When You've Been Censored
If you’ve found that your comments are being removed from a social media page or account maintained by a public agency or official—or you’ve been blocked altogether because of opinions that you’ve voiced—you might want to speak with a civil rights lawyer. An attorney experienced in issues of free speech and new media should be able to explain the latest developments in this area of the law, as well as discuss your options, including the possibility of filing a lawsuit.