Document Type

Comment

Abstract

The right to free speech was deemed so important by the Framers of the Bill of Rights that they enshrined this right in the Free Speech Clause of the First Amendment. There was, however, no way they could have envisioned how communication would evolve to what it is now in the twenty-first century and the related issues that would arise. The threshold question to all alleged First Amendment violations is whether the action at issue is state action. As means of communication progressively move more online to social media, this question has become more difficult to answer. Many government officials now use social media to espouse their policies and interact with their constituents, which has been beneficial in many senses. But this has also led to many contentious interactions between government officials and private citizens. These contentious interactions have resulted in courts grappling with the question of whether certain actions on social media, such as blocking a person from interacting with an account, constitute state action.

Most of the federal courts of appeals use a purpose and appearance test to answer this question. This test considers the purpose and appearance of the social media account at issue by weighing several factors to determine whether a government official’s activity while using that account is state or private action. The Sixth Circuit, however, has opted to perform the state-official test to determine whether action taken on social media is state action. This test asks whether certain social media activity is part of an official’s actual or apparent duties or could not have happened in the same way without the authority of their office. This has led to a circuit split as to how to best handle this issue.

This Comment examines the federal courts of appeals cases utilizing these tests and proposes a solution to this circuit split by creating a two-part test using both the state-official and the purpose and appearance tests. The first part of this two-part test calls for the use of the state-official test. The stateofficial test is a bright-line test that, if satisfied, would find state action without the need to consider the purpose and appearance of a social media account. If no state action is found, however, then the second part of this two-part test uses the more flexible, multi-factor purpose and appearance test to determine if there is state action. By combining these separate tests into a two-part test, in this order, it both takes advantage of their inherent strengths and mitigates their weaknesses. Social media has established itself as a major tool for private citizens and government officials to interact with each other to an extent previously not possible. It is imperative, therefore, that United States courts be prepared to uniformly handle this issue that has occurred numerous times and will continue to occur as long as social media exists.

DOI

10.37419/LR.V11.I1.7

First Page

255

Last Page

277

Recommended Citation

Jacob E. Spicer, Social Media and State Action: Click "Like" and Follow This Two-Part Test, 11 Tex. A&M L. Rev. 255 (2023).
Available at: https://doi.org/10.37419/LR.V11.I1.7

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