Looks Matter on Social Media: How Should Courts Determine Whether a Public Official Operates Their Social Media Account Under Color of State Law?

April 1, 2023

The widespread use of social media has presented a novel legal landscape for the application of constitutionally protected rights—particularly the First Amendment’s protection of free speech.  The First Amendment prohibits the government from excluding citizens from a public forum on the basis of their viewpoints.  Public officials acting under color of state law similarly may not use the authority of their offices to deprive citizens of their First Amendment rights.

However, the application of this protection in the context of social media has been inconsistent across federal circuit courts.  Although these courts agree that viewpoint discrimination by the government on social media is unlawful, they disagree on how to assess whether a public official is acting under color of state law in the operation of their social media accounts.  Some circuits focus on an account’s purpose and appearance to determine whether the official’s activity is fairly attributable to the state.  The U.S. Court of Appeals for the Sixth Circuit, on the other hand, focuses on whether the official operates the account pursuant to their enumerated duties or with the use of state authority.

This Note examines the emerging circuit split over which test courts should apply in determining if a public official’s actions on social media constitute state action.  This Note then advocates for future courts to adopt a modified version of the U.S. Court of Appeals for the Fourth Circuit’s test, which would consider the vital factors of an account’s purpose and appearance.  This Note also provides a guiding principle to promote more consistent assessments of appearances in this context.

April 2023

No. 5