After several years of litigation across the federal appellate courts, the U.S. Supreme Court in a unanimous opinion has finally crafted a test that lower courts can use to determine whether a government official engaged in “state action” such that censoring individuals on the official’s social media page—even if also used for personal purposes—would violate the First Amendment.

The case, Lindke v. Freed, came out of the Sixth Circuit and involves a city manager, while a companion case called O'Connor-Ratcliff v. Garnier came out of the Ninth Circuit and involves public school board members.

A Two-Part Test

The First Amendment prohibits the government from censoring individuals’ speech in public forums based on the viewpoints that individuals express. In the age of social media, where people in government positions use public-facing social media for both personal, campaign, and official government purposes, it can be unclear whether the interactive parts (e.g., comments section) of a social media page operated by someone who works in government amount to a government-controlled public forum subject to the First Amendment’s prohibition on viewpoint discrimination. Another way of stating the issue is whether a government official who uses a social media account for personal purposes is engaging in state action when they also use the account to speak about government business.  

As the Supreme Court states in the Lindke opinion, “Sometimes … the line between private conduct and state action is difficult to draw,” and the question is especially difficult “in a case involving a state or local official who routinely interacts with the public.”

The Supreme Court announced a fact-intensive test to determine if a government official’s speech on social media counts as state action under the First Amendment. The test includes two required elements:

• the official “possessed actual authority to speak” on the government’s behalf, and
• the official “purported to exercise that authority when he spoke on social media.”

Although the court’s opinion isn’t as generous to internet users as we had asked for in our amicus brief, it does provide guidance to individuals seeking to vindicate their free speech rights against government officials who delete their comments or block them outright.

This issue has been percolating in the courts since at least 2016. Perhaps most famously, the Knight First Amendment Institute at Columbia University and others sued then-president Donald Trump for blocking many of the plaintiffs on Twitter. In that case, the U.S. Court of Appeals for the Second Circuit affirmed a district court’s holding that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. EFF has also represented PETA in two cases against Texas A&M University.

Element One: Does the official possess actual authority to speak on the government’s behalf?

There is some ambiguity as to what specific authority the Supreme Court believes the government official must have. The opinion is unclear whether the authority is simply the general authority to speak officially on behalf of the public entity, or instead the specific authority to speak officially on social media. On the latter framing, the opinion, for example, discusses the authority “to post city updates and register citizen concerns,” and the authority “to speak for the [government]” that includes “the authority to do so on social media….” The broader authority to generally speak on behalf of the government would be easier to prove for plaintiffs and should always include any authority to speak on social media.

Element One Should Be Interpreted Broadly

We will urge the lower courts to interpret the first element broadly. As we emphasized in our amicus brief, social media is so widely used by government agencies and officials at all levels that a government official’s authority generally to speak on behalf of the public entity they work for must include the right to use social media to do so. Any other result does not reflect the reality we live in.

Moreover, plaintiffs who are being censored on social media are not typically commenting on the social media pages of low-level government employees, say, the clerk at the county tax assessor’s office, whose authority to speak publicly on behalf of their agency may be questionable. Plaintiffs are instead commenting on the social media pages of people in leadership positions, who are often agency heads or in elected positions and who surely should have the general authority to speak for the government.

“At the same time,” the Supreme Court cautions, “courts must not rely on ‘excessively broad job descriptions’ to conclude that a government employee is authorized to speak” on behalf of the government. But under what circumstances would a court conclude that a government official in a leadership position does not have such authority? We hope these circumstances are few and far between for the sake of plaintiffs seeking to vindicate their First Amendment rights.

When Does the Use of a New Communications Technology Become So “Well Settled” That It May Fairly Be Considered Part of a Government Official’s Public Duties?

If, on the other hand, the lower courts interpret the first element narrowly and require plaintiffs to provide evidence that the government official who censored them had authority to speak on behalf of the agency on social media specifically, this will be more difficult to prove.

One helpful aspect of the court’s opinion is that the government official’s authority to speak (however that’s defined) need not be written explicitly in their job description. This is in contrast to what the Sixth Circuit had, essentially, held. The authority to speak on behalf of the government, instead, may be based on “persistent,” “permanent,” and “well settled” “custom or usage.”  

We remain concerned, however, that if there is a narrower requirement that the authority must be to speak on behalf of the government via a particular communications technology—in this case, social media—then at what point does the use of a new technology become so “well settled” for government officials that it is fair to conclude that it is within their public duties?

Fortunately, the case law on which the Supreme Court relies does not require an extended period of time for a government practice to be deemed a legally sufficient “custom or usage.” It would not make sense to require an ages-old custom and usage of social media when the widespread use of social media within the general populace is only a decade and a half old. Ultimately, we will urge lower courts to avoid this problem and broadly interpret element one.

Government Officials May Be Free to Censor If They Speak About Government Business Outside Their Immediate Purview

Another problematic aspect of the Supreme Court’s opinion within element one is the additional requirement that “[t]he alleged censorship must be connected to speech on a matter within [the government official’s] bailiwick.”

The court explains:

For example, imagine that [the city manager] posted a list of local restaurants with health-code violations and deleted snarky comments made by other users. If public health is not within the portfolio of the city manager, then neither the post nor the deletions would be traceable to [his] state authority—because he had none.

But the average constituent may not make such a distinction—nor should they. They would simply see a government official talking about an issue generally within the government’s area of responsibility. Yet under this interpretation, the city manager would be within his right to delete the comments, as the constituent could not prove that the issue was within that particular government official’s purview, and they would thus fail to meet element one.

Element Two: Did the official purport to exercise government authority when speaking on social media?

Plaintiffs Are Limited in How a Social Media Account’s “Appearance and Function” Inform the State Action Analysis

In our brief, we argued for a functional test, where state action would be found if a government official were using their social media account in furtherance of their public duties, even if they also used that account for personal purposes. This was essentially the standard that the Ninth Circuit adopted, which included looking at, in the words of the Supreme Court, “whether the account’s appearance and content look official.” The Supreme Court’s two-element test is more cumbersome for plaintiffs. But the upside is that the court agrees that a social media account’s “appearance and function” is relevant, even if only with respect to element two.

Reality of Government Officials Using Both Personal and Official Accounts in Furtherance of Their Public Duties Is Ignored

Another problematic aspect of the Supreme Court’s discussion of element two is that a government official’s social media page would amount to state action if the page is the “only” place where content related to government business is located. The court provides an example: “a mayor would engage in state action if he hosted a city council meeting online by streaming it only on his personal Facebook page” and it wasn’t also available on the city’s official website. The court further discusses a new city ordinance that “is not available elsewhere,” except on the official’s personal social media page. By contrast, if “the mayor merely repeats or shares otherwise available information … it is far less likely that he is purporting to exercise the power of his office.”

This limitation is divorced from reality and will hamstring plaintiffs seeking to vindicate their First Amendment rights. As we showed extensively in our brief (see Section I.B.), government officials regularly use both official office accounts and “personal” accounts for the same official purposes, by posting the same content and soliciting constituent feedback—and constituents often do not understand the difference.

Constituent confusion is particularly salient when government officials continue to use “personal” campaign accounts after they enter office. The court’s conclusion that a government official “might post job-related information for any number of personal reasons, from a desire to raise public awareness to promoting his prospects for reelection” is thus highly problematic. The court is correct that government officials have their own First Amendment right to speak as private citizens online. However, their constituents should not be subject to censorship when a campaign account functions the same as a clearly official government account.

An Upside: Supreme Court Denounces the Blocking of Users Even on Mixed-Use Social Media Accounts

One very good aspect of the Supreme Court’s opinion is that if the censorship amounted to the blocking of a plaintiff from engaging with the government official’s social media page as a whole, then the plaintiff must merely show that the government official “had engaged in state action with respect to any post on which [the plaintiff] wished to comment.”  

The court further explains:

The bluntness of Facebook’s blocking tool highlights the cost of a “mixed use” social-media account: If page-wide blocking is the only option, a public of­ficial might be unable to prevent someone from commenting on his personal posts without risking liability for also pre­venting comments on his official posts. A public official who fails to keep personal posts in a clearly designated per­sonal account therefore exposes himself to greater potential liability.

We are pleased with this language and hope it discourages government officials from engaging in the most egregious of censorship practices.

The Supreme Court also makes the point that if the censorship was the deletion of a plaintiff’s individual comments under a government official’s posts, then those posts must each be analyzed under the court’s new test to determine whether a particular post was official action and whether the interactive spaces that accompany it are government forums. As the court states, “it is crucial for the plaintiff to show that the official is purporting to exercise state authority in specific posts.” This is in contrast to the Sixth Circuit, which held, “When analyzing social-media activity, we look to a page or account as a whole, not each individual post.”

The Supreme Court’s new test for state action unfortunately puts a thumb on the scale in favor of government officials who wish to censor constituents who engage with them on social media. However, the test does chart a path forward on this issue and should be workable if lower courts apply the test with an eye toward maximizing constituents’ First Amendment rights online.

In a case being heard Monday at the Supreme Court, 45 Washington lawmakers have argued that government communications with social media sites about possible election interference misinformation are illegal.

Agencies can't even pass on information about websites state election officials have identified as disinformation, even if they don't request that any action be taken, they assert.

Yet just this week the vast majority of those same lawmakers said the government's interest in removing election interference misinformation from social media justifies banning a site used by 150 million Americans.

On Monday, the Supreme Court will hear oral arguments in Murthy v. Missouri, a case that raises the issue of whether the federal government violates the First Amendment by asking social media platforms to remove or negatively moderate user posts or accounts. In Murthy, the government contends that it can strongly urge social media sites to remove posts without violating the First Amendment, as long as it does not coerce them into doing so under the threat of penalty or other official sanction.

We recognize both the hazards of government involvement in content moderation and the proper role in some situations for the government to share its expertise with the platforms. In our brief in Murthy, we urge the court to adopt a view of coercion that includes indirectly coercive communications designed and reasonably perceived as efforts to replace the platform’s editorial decision-making with the government’s.

And we argue that close cases should go against the government. We also urge the court to recognize that the government may and, in some cases, should appropriately inform platforms of problematic user posts. But it’s the government’s responsibility to make sure that its communications with the platforms are reasonably perceived as being merely informative and not coercive.

In contrast, the Members of Congress signed an amicus brief in Murthy supporting placing strict limitations on the government’s interactions with social media companies. They argued that the government may hardly communicate at all with social media platforms when it detects problematic posts.

Notably, the specific posts they discuss in their brief include, among other things, posts the U.S. government suspects are foreign election interference. For example, the case includes allegations about the FBI and CISA improperly communicating with social media sites that boil down to the agency passing on pertinent information, such as websites that had already been identified by state and local election officials as disinformation. The FBI did not request that any specific action be taken and sought to understand how the sites' terms of service would apply.

As we argued in our amicus brief, these communications don't add up to the government dictating specific editorial changes it wanted. It was providing information useful for sites seeking to combat misinformation. But, following an injunction in Murthy, the government has ceased sharing intelligence about foreign election interference. Without the information, Meta reports its platforms could lack insight into the bigger threat picture needed to enforce its own rules.

The problem of election misinformation on social media also played a prominent role this past week when the U.S. House of Representatives approved a bill that would bar app stores from distributing TikTok as long as it is owned by its current parent company, ByteDance, which is headquartered in Beijing. The bill also empowers the executive branch to identify and similarly ban other apps that are owned by foreign adversaries.

As stated in the House Report that accompanied the so-called "Protecting Americans from Foreign Adversary Controlled Applications Act," the law is needed in part because members of Congress fear the Chinese government “push[es] misinformation, disinformation, and propaganda on the American public” through the platform. Those who supported the bill thus believe that the U.S. can take the drastic step of banning an app for the purposes of preventing the spread of “misinformation and propaganda” to U.S. users. A public report from the Office of the Director for National Intelligence was more specific about the threat, indicating a special concern for information meant to interfere with the November elections and foment societal divisions in the U.S.

Over 30 members of the House who signed the amicus brief in Murthy voted for the TikTok ban. So, many of the same people who supported the U.S. government’s efforts to rid a social media platform of foreign misinformation, also argued that the government’s ability to address the very same content on other social media platforms should be sharply limited.

Admittedly, there are significant differences between the two positions. The government does have greater limits on how it regulates the speech of domestic companies than it does the speech of foreign companies.

But if the true purpose of the bill is to get foreign election misinformation off of social media, the inconsistency in the positions is clear.  If ByteDance sells TikTok to domestic owners so that TikTok can stay in business in the U.S., and if the same propaganda appears on the site, is the U.S. now powerless to do anything about it? If so, that would seem to undercut the importance in getting the information away from U.S. users, which is one the chief purposes of the TikTik ban.

We believe there is an appropriate role for the government to play, within the bounds of the First Amendment, when it truly believes that there are posts designed to interfere with U.S. elections or undermine U.S. security on any social media platform. It is a far more appropriate role than banning a platform altogether.

We’ve been saying it for 20 years, and it remains true now more than ever: the internet is an essential service. It enables people to build and create communities, shed light on injustices, and acquire vital knowledge that might not otherwise be available. And access to it becomes even more imperative in circumstances where being able to communicate and share real-time information directly with the people you trust is instrumental to personal safety and survival. More specifically, during wartime and conflict, internet and phone services enable the communication of information between people in challenging situations, as well as the reporting by on-the-ground journalists and ordinary people of the news. 

Unfortunately, governments across the world are very aware of their power to cut off this crucial lifeline, and frequently undertake targeted initiatives to do so. These internet shutdowns have become a blunt instrument that aid state violence and inhibit free speech, and are routinely deployed in direct contravention of human rights and civil liberties.

And this is not a one-dimensional situation. Nearly twenty years after the world’s first total internet shutdowns, this draconian measure is no longer the sole domain of authoritarian states but has become a favorite of a diverse set of governments across three continents. For example:

In Iran, the government has been suppressing internet access for many years. In the past two years in particular, people of Iran have suffered repeated internet and social media blackouts following an activist movement that blossomed after the death of Mahsa Amini, a woman murdered in police custody for refusing to wear a hijab. The movement gained global attention and in response, the Iranian government rushed to control both the public narrative and organizing efforts by banning social media, and sometimes cutting off internet access altogether. 

In Sudan, authorities have enacted a total telecommunications blackout during a massive conflict and displacement crisis. Shutting down the internet is a deliberate strategy blocking the flow of information that brings visibility to the crisis and prevents humanitarian aid from supporting populations endangered by the conflict. The communications blackout has extended for weeks, and in response a global campaign #KeepItOn has formed to put pressure on the Sudanese government to restore its peoples' access to these vital services. More than 300 global humanitarian organizations have signed on to support #KeepItOn.

And in Palestine, where the Israeli government exercises near-total control over both wired internet and mobile phone infrastructure, Palestinians in Gaza have experienced repeated internet blackouts inflicted by the Israeli authorities. The latest blackout in January 2024 occurred amid a widespread crackdown by the Israeli government on digital rights—including censorship, surveillance, and arrests—and amid accusations of bias and unwarranted censorship by social media platforms. On that occasion, the internet was restored after calls from civil society and nations, including the U.S. As we’ve noted, internet shutdowns impede residents' ability to access and share resources and information, as well as the ability of residents and journalists to document and call attention to the situation on the ground—more necessary than ever given that a total of 83 journalists have been killed in the conflict so far. 

Given that all of the internet cables connecting Gaza to the outside world go through Israel, the Israeli Ministry of Communications has the ability to cut off Palestinians’ access with ease. The Ministry also allocates spectrum to cell phone companies; in 2015 we wrote about an agreement that delivered 3G to Palestinians years later than the rest of the world. In 2022, President Biden offered to upgrade the West Bank and Gaza to 4G, but the initiative stalled. While some Palestinians are able to circumvent the blackout by utilizing Israeli SIM cards (which are difficult to obtain) or Egyptian eSIMs, these workarounds are not solutions to the larger problem of blackouts, which the National Security Council has said: “[deprive] people from accessing lifesaving information, while also undermining first responders and other humanitarian actors’ ability to operate and to do so safely.”

Access to internet infrastructure is essential, in wartime as in peacetime. In light of these numerous blackouts, we remain concerned about the control that authorities are able to exercise over the ability of millions of people to communicate. It is imperative that people’s access to the internet remains protected, regardless of how user platforms and internet companies transform over time. We continue to shout this, again and again, because it needs to be restated, and unfortunately today there are ever more examples of it happening before our eyes.

Legal intern Muhammad Essa Fasih contributed to this post.

Social media is a crucial means of communication in times of conflict—it’s where communities connect to share updates, find help, locate loved ones, and reach out to express grief, pain, and solidarity. Unjustified takedowns during crises like the war in Gaza deprives people of their right to freedom of expression and can exacerbate humanitarian suffering.

In the weeks since war between Hamas and Israel began, social media platforms have removed content from or suspended accounts of Palestinian news sites, activists, journalists, students, and Arab citizens in Israel, interfering with the dissemination of news about the conflict and silencing voices expressing concern for Palestinians.

The platforms say some takedowns were caused by security issues, technical glitches, mistakes that have been fixed, or stricter rules meant to reduce hate speech. But users complain of unexplained removals of posts about Palestine since the October 7 Hamas terrorist attacks.

Meta’s Facebook shut down the page of independent Palestinian website Quds News Network, a primary source of news for Palestinians with 10 million followers. The network said its Arabic and English news pages had been deleted from Facebook, though it had been fully complying with Meta's defined media standards. Quds News Network has faced similar platform censorship before—in 2017, Facebook censored its account, as did Twitter in 2020.

Additionally, Meta’s Instagram has locked or shut down accounts with significant followings. Among these are Let’s Talk Palestine, an account with over 300,000 followers that shows pro-Palestinian informative content, and Palestinian media outlet 24M. Meta said the accounts were locked for security reasons after signs that they were compromised.

The account of the news site Mondoweiss was also banned by Instagram and taken down on TikTok, later restored on both platforms.

Meanwhile, Instagram, Tiktok, and LinkedIn users sympathetic to or supportive of the plight of Palestinians have complained of “shadow banning,” a process in which the platform limits the visibility of a user's posts without notifying them. Users say the platform limited the visibility of posts that contained the Palestinian flag.

Meta has admitted to suppressing certain comments containing the Palestinian flag in certain “offensive contexts” that violate its rules. Responding to a surge in hate speech after Oct.7, the company lowered the threshold for predicting whether comments qualify as harassment or incitement to violence from 80 percent to 25 percent for users in Palestinian territories. Some content creators are using code words and emojis and shifting the spelling of certain words to evade automated filtering. Meta needs to be more transparent about decisions that downgrade users’ speech that does not violate its rules.

For some users, posts have led to more serious consequences. Palestinian citizens of Israel, including well-known singer Dalal Abu Amneh from Nazareth, have been arrested for social media postings about the war in Gaza that are alleged to express support for the terrorist group Hamas.

Amneh’s case demonstrates a disturbing trend concerning social media posts supporting Palestinians. Amneh’s post of the Arabic motto “There is no victor but God” and the Palestinian flag was deemed as incitement. Amneh, whose music celebrates Palestinian heritage, was expressing religious sentiment, her lawyer said, not calling for violence as the police claimed.

She received hundreds of death threats and filed a complaint with Israeli police, only to be taken into custody. Her post was removed. Israeli authorities are treating any expression of support or solidarity with Palestinians as illegal incitement, the lawyer said.

Content moderation does not work at scale even in the best of times, as we have said repeatedly. At all times, mistakes can lead to censorship; during armed conflicts they can have devastating consequences.

Whether through content moderation or technical glitches, platforms may also unfairly label people and communities. Instagram, for example, inserted the word “terrorist” into the profiles of some Palestinian users when its auto-translation converted the Palestinian flag emoji followed by the Arabic word for “Thank God” into “Palestinian terrorists are fighting for their freedom.” Meta apologized for the mistake, blaming it on a bug in auto-translation. The translation is now “Thank God.”

Palestinians have long fought private censorship, so what we are seeing now is not particularly new. But it is growing at a time when online speech protections are sorely needed. We call on companies to clarify their rules, including any specific changes that have been made in relation to the ongoing war, and to stop the knee jerk reaction to treat posts expressing support for Palestinians—or notifying users of peaceful demonstrations, or documenting violence and the loss of loved ones—as incitement and to follow their own existing standards to ensure that moderation remains fair and unbiased.

Platforms should also follow the Santa Clara Principles on Transparency and Accountability in Content Moderation notify users when, how, and why their content has been actioned, and give them  the opportunity to appeal. We know Israel has worked directly with Facebook, requesting and garnering removal of content it deemed incitement to violence, suppressing posts by Palestinians about human rights abuses during May 2021 demonstrations that turned violent.

The horrific violence and death in Gaza is heartbreaking. People are crying out to the world, to family and friends, to co-workers, religious leaders, and politicians their grief and outrage. Labeling large swaths of this outpouring of emotion by Palestinians as incitement is unjust and wrongly denies people an important outlet for expression and solace.

Intern Muhammad Essa contributed to this post.

EFF, along with the Foundation for Individual Rights and Expression (FIRE), filed a brief in the U.S. Court of Appeals for the D.C. Circuit urging the court to reverse a lower court ruling that upheld the censorship of public comments on a government agency’s social media pages. The district court’s decision is problematic because it undermines our right to freely express opinions on issues of public importance using a modern and accessible way to communicate with government representatives.

People for the Ethical Treatment of Animals (PETA) sued the National Institutes of Health (NIH), arguing that NIH blocks their comments against animal testing in scientific research on the agency’s Facebook and Instagram pages, thus violating of the First Amendment. NIH provides funding for research that involves testing on animals from rodents to primates.

NIH claims to apply a general rule prohibiting public comments that are “off topic” to the agency’s social media posts—yet the agency implements this rule by employing keyword filters that include words such as cruelty, revolting, tormenting, torture, hurt, kill, and stop. These words are commonly found in comments that express a viewpoint that is against animal testing and sympathetic to animal rights.

First Amendment law makes it clear that when a government agency opens a forum for public participation, such as the interactive spaces of the agency’s social media pages, it is prohibited from censoring a particular viewpoint in that forum. Any speech restrictions that it may apply must be viewpoint-neutral, meaning that the restrictions should apply equally to all viewpoints related to a topic, not just to the viewpoint that the agency disagrees with.

EFF’s brief argues that courts must approach with scepticism a government agency’s claim that its “off topic” speech restriction is viewpoint-neutral and is only intended to exclude irrelevant comments. How such a rule is implemented could reveal that it is in fact a guise for unconstitutional viewpoint discrimination. This is the case here and the district court erred in ruling for the government.

For example, EFF’s brief argues that NIH’s automated keyword filters are imprecise—they are incapable of accurately implementing an “off topic” rule because they are incapable of understanding context and nuance, which is necessary when comparing a comment to a post. Also, NIH’s keyword filters and the agency’s manual enforcement of the “off topic” rule are highly underinclusive—that is, other people's comments that are “off topic” to a post are often allowed to remain on the agency’s social media pages. Yet PETA’s comments against animal testing are reliably censored.

Imprecise and underinclusive enforcement of the “off topic” rule suggests that NIH’s rule is not viewpoint-neutral but is really a means to block PETA activists from engaging with the agency online.

EFF’s brief urges the D.C. Circuit to reject the district court’s erroneous holding and rule in favor of the plaintiffs. This would protect everyone’s right to express their opinions freely online. The free exchange of opinions informs public policy and is a crucial characteristic of a democratic society. A genuine representative government must not be afraid of public criticism.