A public information request submitted by The Hawk’s Eye to the City of San Marcos prompted a citywide review of blocked users across official government social media accounts. The request sought block lists of government social media accounts.  During its review of responsive records, the city stated that staff discovered “several accounts had been blocked on official City social media accounts, contrary to City social media best practices.”  The city further stated that all identified accounts have now been unblocked and that current staff with access to official accounts will be reviewed to ensure full compliance. 

Accounts Identified Across Facebook, Instagram, and Twitter

The records released by the city show that block lists were associated with multiple official accounts across Facebook, Instagram, and Twitter. On Facebook, the pages identified in the responsive documents include San Marcos Emergency Services, SMTX Parks and Recreation, San Marcos Regional Animal Shelter, City of San Marcos TX – City Hall, Keep San Marcos Beautiful, San Marcos Public Library, Downtown San Marcos, and Visit San Marcos. 

The production also reflects block lists tied to Instagram accounts identified as San Marcos Arts, Downtown San Marcos, Visit San Marcos, and City of San Marcos.  In addition, a Twitter account labeled City of San Marcos was included in the records with a corresponding block list.  The documents confirm that blocked accounts existed on these platforms prior to the review. The city’s response does not specify when the blocks were implemented or the circumstances surrounding individual decisions.

Supreme Court and Sixth Circuit Clarify the Legal Standard

The U.S. Supreme Court addressed government social media blocking in Kindle v. Freed, decided March 15, 2024. The case arose after Port Huron City Manager James Freed deleted comments and blocked a resident from his Facebook page during the COVID-19 pandemic. The resident sued under 42 U.S.C. §1983, alleging a violation of his First Amendment rights. The main issue was whether Freed was acting as a private individual or as a government official when he blocked the user. The Supreme Court used the case to establish a uniform nationwide standard for analyzing those disputes.

In a unanimous opinion, the Court held that a public official’s social media conduct constitutes state action only if two requirements are satisfied. First, the official must possess actual authority to speak on the government’s behalf. Second, the official must purport to exercise that authority in the specific posts connected to the alleged censorship. The Court made clear that apparent authority is not enough — the authority must be real and traceable to statute, ordinance, regulation, custom, or usage. The analysis must also be conducted on a post-by-post basis when accounts are mixed between personal and official content. Simply holding public office does not automatically convert every online interaction into government action.

Importantly, the Supreme Court did not decide whether Freed violated the First Amendment. Instead, the Court vacated the Sixth Circuit’s earlier ruling and remanded the case for further proceedings under the new legal standard. The decision replaced the broader “appearance”-based tests used by some lower courts with a narrower inquiry focused on actual authority and how specific posts were used. The ruling now governs how courts nationwide evaluate whether blocking users on government-connected social media accounts triggers constitutional scrutiny.

On remand, the U.S. Court of Appeals for the Sixth Circuit reconsidered the case in light of the Supreme Court’s decision. In Lindke v. Freed, 114 F.4th 812 (6th Cir. 2024), the appellate court acknowledged that the Supreme Court’s test was both narrower and broader than the standard it had previously applied.  The Sixth Circuit concluded that the factual record was not sufficiently developed to apply the Supreme Court’s revised test. As a result, it remanded the case back to the federal district court for further proceedings. 

The Sixth Circuit emphasized that the first step now requires proof that the official had actual authority to speak for the state on the specific subject matter involved.  It further explained that the second step requires a post-by-post analysis to determine whether the official was exercising that authority in the posts tied to the alleged censorship.  The court noted that blocking on Facebook is a “blunt tool,” meaning that if even one post qualifies as state action, preventing a user from commenting on that post could carry constitutional consequences.

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The content provided in this publication is for educational and informational purposes only. The Hawk’s Eye – Consulting & News strives to deliver accurate and impactful stories. However, readers are advised to seek professional legal counsel and guidance for their specific legal inquiries and concerns. The publication does not assume any responsibility for actions taken by individuals based on the information presented. 

Additionally, while every effort is made to ensure the reliability of the information, the publication does not warrant the completeness, accuracy, or timeliness of the content. Readers are encouraged to verify any legal information with official sources and to use their discretion when interpreting and applying the information provided.

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