Legal Updates and Conferences
United States Supreme Court Clarifies When a Public Official’s Social Media Conduct Can Subject a Government Entity to Liability Under the First Amendment.
Section 1983 of the Civil Rights Act allows individuals to sue government entities and their officials and employees for violations of, among other things, the First Amendment. In any Section 1983 litigation, one of the central questions is whether the allegedly unconstitutional conduct constitutes an official governmental action, which is actionable, or private action, which cannot support a claim under Section 1983. In the world of social media and online communications, it is often difficult to answer that question.
The United States Supreme Court recently considered this issue in the case of Lindke v. Freed. The Lindke case involved a Section 1983 claim by a citizen of Port Huron, Michigan against the Port Huron City Manager. Specifically, the citizen alleged that the City Manager violated his First Amendment rights by blocking him from commenting on the City Manager’s personal, public Facebook page.
While the Supreme Court did not reach the issue of whether the City Manager violated the citizen’s First Amendment rights, it did identify a test for determining when a government official’s social media activity constitutes “state action” that may result in liability under Section 1983. Specifically, the Court held that a public official’s social media activity only amounts to official state action if the official both: (1) possessed actual authority to speak on the State’s behalf on a particular matter; and (2) purported to exercise that authority when speaking in the relevant social media posts.
The Court also identified factors to consider when determining if a government official’s social media activity meets these factors. For instance, in order to determine whether a public official has actual authority to speak on the government entity’s behalf, courts must consider both the written law prescribing an official’s powers (e.g., statutes, ordinances, and regulations) and recognized traditions of the official’s authority (i.e., customs and usage). With regard to the second element of the test, the Court held that whether a public official purports to speak on the government’s behalf depends on the content and function of the social media conduct.
As social media usage by government employees is extremely common, the Lindke decision has the potential to affect all government agencies. While a government actor may not be able to address an employee’s state of mind, all employers can clearly remind employees as to whether and to what extent the employee is authorized (or not) to speak on the entity’s behalf. Likewise, all government entities can, and should, review their policies and practices to ensure that staff members are not inadvertently authorized to speak on the entity’s behalf in a manner that may expose the entity to liability under Section 1983.
Minnesota Federal Court Issues First Amendment Decision in Favor of School District
On March 25, 2024, the United States District Court for the District of Minnesota issued an order dismissing First Amendment claims against a school district, the school board, the school board chair, and the superintendent (“School Defendants”). The case, McNeally v. Home Town Bank, et al., involved a claim by a former employee of Home Town Bank alleging that the School Defendants retaliated against her for criticizing the school board chair on social media. Specifically, the Plaintiff alleged that, after criticizing the school board chair on Facebook, the School Defendants colluded with the Bank to have her suspended, investigated, and, ultimately, terminated. The Plaintiff also alleged that the superintendent intentionally interfered with her employment. After over two years of litigation, the Court granted the School Defendants’ Motions for Summary Judgment—as well was the bank’s Motion for Summary Judgment—and dismissed all claims.
The Court’s decision is very fact-intensive. In general, however, the Court found that there was insufficient evidence to support a claim that the School Defendants (either collectively or individually) took any adverse action against the Plaintiff or colluded with the bank to retaliate against her for her speech protected by the First Amendment. Instead, the Court found that the bank acted as a private entity (not a state actor) when it took disciplinary actions against the Plaintiff. The court also found that the superintendent’s conduct (including a letter he sent to the bank after learning about the social media posts), did not constitute adverse action that could independently subject the School Defendants to liability under Section 1983. The court also found that there was no evidence that the school district, school board, or board chair actually took any action against the Plaintiff or urged the bank to take any such action. Finally, the Court noted that, in this case, the superintendent and the board chair would have been protected by qualified immunity, as their conduct did not violate a clearly established right.
While the Court’s decision is limited to the particular factual circumstances, it highlights the importance of clearly designating duties and thorough documentation practices. Notably, in considering the claim against the school district and school board, the court looked for evidence of custom or policy to suggest whether the school district had a policy of retaliating (or allowing staff to retaliate) against individuals based on comments or opinions that run contrary to those of the school board. The superintendent, employees, and board members who testified during the case were able to point to numerous records, policies, and communications to defend against the Plaintiff’s claim that the school district had such a policy or practice.
The McNeally case also highlights the need to proceed with caution when responding to community members who post their opinions about a government entity, elected official, or employee. While the evidence in this case did not support a finding of unlawful conduct by any defendant, it would have been a different outcome if any school district employee or representative would have asked the bank to fire the Plaintiff or threatened the bank with some kind of consequence if it did not do so.
Both the Supreme Court’s decision in Lindke and the McNeally case illustrate the fine line between conduct that exposes a government entity to liability under the First Amendment and conduct that does not. Given the potential risk of costly liability and the sometimes difficult to apply standards in First Amendment litigation, we recommend that all government entities consult with legal counsel before responding to adverse comments by members of the public, including taking actions on social media and/or reaching out to the community member’s employer.
If you have questions regarding either of these cases, the First Amendment, or a specific example of public official’s social media use, the lawyers of Ratwik, Roszak & Maloney are happy and prepared to discuss your inquiry and apply our knowledge and experience to your specific situation. We can be reached at (612) 339-0060.
SRO (School Resource Officers) Bill Signed into Law by Governor Walz.
On March 14, Governor Tim Walz signed a bill intended to clarify the authority of school resource officers (“SROs”). The bill makes changes to Minnesota Statutes, sections 121A.58 and 121A.582, which the Legislature amended in 2023 to restrict the ability of school district employees or agents to employ physical force against students. The bill also creates a new law, Minnesota Statutes, section 626.8482, which specifically relates to SROs, and amends the Minnesota criminal statutes related to reasonable use of force where it is necessary to restrain a child or pupil.
Specifically, the bill amends Section 121A.58, subdivision 1, by adding a provision stating that for the purposes of that law, the term “employee or agent of a district” does not include SROs. It also removes SROs, security personnel, and police officers contracted with the district from the prohibitions on prone restraint and certain physical holds. Likewise, the bill also adds a subdivision to Section 121A.582 clarifying that an SRO is not a school employee or agent of the district for purposes of section 121A.582. Together, these changes permit law enforcement officers to use approved law enforcement tactics (including prone restraint) when acting in their capacity as law enforcement officers.
The bill also amends Section 121A.582, subdivision 1 by removing the word “imminent” from the reasonable force standard. As written, the law now allows reasonable force when it is necessary “to prevent bodily harm or death to the student or to another.” This change provides school employees with some greater flexibility when using reasonable force to respond to student conduct that creates a risk of physical harm or death, but does not expand the scope of school employees’ authority beyond those situations.
The new statute, Section 626.8482, defines the terms “school” and “school resource officer.” It also imposes seven specific duties on SROs under any contract with a school district or charter school and imposes training requirements for peace officers assigned to serve as SROs that must be completed by September 1, 2025. The law further requires the Peace Officer Standards and Training Board to develop a model SRO policy by December 31, 2024 and requires law enforcement agencies to adopt a written policy that is at minimum substantially similar to the model policy.
Finally, the bill amends Minnesota Statutes, sections 609.06, subdivision 1, and 609.379, subdivision 1, which are provisions in Minnesota’s criminal code. These amendments reflect the changes to Section 125A.582. The result of these statutory changes is that reasonable force only may be used “when used by a teacher, school principal, school employee, school bus driver, other agent of a district, or other member of the instructional, support, or supervisory staff or a public or nonpublic school upon or toward a child or pupil when necessary to restrain the child or pupil to prevent bodily harm or death to the child, pupil or another.”
If you have questions regarding this new bill, the lawyers of Ratwik, Roszak & Maloney are happy and prepared to discuss your inquiry and apply our knowledge and experience to your specific situation. We can be reached at (612) 339-0060.
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