Cite as: 601 U. S. ____ (2024)
13
Opinion of the Court
president.
The context of Freed’s speech is hazier than that of the
hypothetical school board president. Had Freed’s account
carried a label (e.g., “this is the personal page of James R.
Freed”) or a disclaimer (e.g., “the views expressed are
strictly my own”), he would be entitled to a heavy (though
not irrebuttable) presumption that all of the posts on his
page were personal. Markers like these give speech the
benefit of clear context: Just as we can safely presume that
speech at a backyard barbeque is personal, we can safely
presume that speech on a “personal” page is personal (absent significant evidence indicating that a post is official).2
Conversely, context can make clear that a social-media account purports to speak for the government—for instance,
when an account belongs to a political subdivision (e.g., a
“City of Port Huron” Facebook page) or is passed down to
whomever occupies a particular office (e.g., an
“@PHuronCityMgr” Instagram account). Freed’s page,
however, was not designated either “personal” or “official,”
raising the prospect that it was “mixed use”—a place where
he made some posts in his personal capacity and others in
his capacity as city manager.
Categorizing posts that appear on an ambiguous page
like Freed’s is a fact-specific undertaking in which the
post’s content and function are the most important considerations. In some circumstances, the post’s content and
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2 An official cannot insulate government business from scrutiny by conducting it on a personal page. The Solicitor General offers the particularly clear example of an official who designates space on his nominally
personal page as the official channel for receiving comments on a proposed regulation. Because the power to conduct notice-and-comment
rulemaking belongs exclusively to the State, its exercise is necessarily
governmental. Similarly, a mayor would engage in state action if he
hosted a city council meeting online by streaming it only on his personal
Facebook page. By contrast, a post that is compatible with either a “personal capacity” or “official capacity” designation is “personal” if it appears on a personal page.