By Shaxper McCarver, Nathaniel Cambridge, and Joshua Vituszynski of the Vanderbilt Stanton Foundation First Amendment Clinic
Picture this: A state representative announces a town hall and invites everyone to attend. He uses taxpayer-funded staff to monitor the event. Those same staffers prepare graphics, compile data, and draft talking points to guide the discussion. Town hall discussions have long functioned as a bedrock of democratic governance because they foster open criticism and meaningful connection between elected officials and constituents.[1] In this context, it would seem clear that the representative has established a public forum, intentionally opening a designated space for expressive activity.[2] The government has made the space generally available to members of the public.[3] And once a public forum exists, the First Amendment forbids viewpoint discrimination.[4]
Today, the equivalent of the in-person town hall exists online.[5] Legislative officials use social media sites like Facebook, Instagram, and X to engage the public with graphics, data, and talking points.[6] Legislators have created public forums on social media, so one might think that First Amendment protections apply to those who participate in these online forums.[7] But when the same traditional town hall shifts to the digital realm, suddenly the rules change. The representative still uses government resources to create content and to manage the space, but now he can silence dissenters with a click—all while continuing to benefit from tax dollars and state resources. According to some courts, this is perfectly legal.
In the 2024 case Lindke v. Freed, the Supreme Court recognized that First Amendment protections apply on social media and set forth a new two-prong test to define when a public official’s actions on social media constitute state action.[8] First, the public official must possess “actual authority” to speak on behalf of the state.[9] Second, the public official must have “purported to exercise that authority when he spoke on social media.”[10]
There exists a troubling trend in the application of the Lindke doctrine. In the emerging interpretation of Lindke’s state action requirement, some courts have concluded that individual legislators do not have “state authority” unless they act collectively as part of the legislative body[11]—presumably referencing official resolutions. In other words, unless the state house or senate acts as a whole, the individual legislators within the house or senate do not act under state authority.[12] So, what an individual legislator does on their social media accounts is treated as private conduct—even when government-paid staff operate behind the scenes to populate the page with legislative accomplishments and to facilitate constituent engagement.[13] Furthermore, this conceptualization of Lindke could extend to other public officials that sit onmulti-member bodies, such as school boards or city councils.[14]
Under § 1983, state action can be established through written law or custom and usage.[15] Yet courts have been reluctant to analyze custom and usage as a pathway to establish state action on social media.[16] Legislators’ communication practices often derive from tradition and not written law, and the Supreme Court has already acknowledged this fact. In Hutchinson v. Proxmire, the Court recognized that there could be a “duty of [legislators] to tell the public about their activities,” but the Court identified no source of written law for this practice.[17] Similarly, in United States v. Brewster, the Court noted that public engagement has “come to be expected by constituents” due to legislators’ longstanding communicative practices like “news releases and speeches.”[18] Because written law does not cover legislators’ communication practices, analysis of custom and usage is essential. These complications underscore the necessity of a clearer and more streamlined Lindke standard.
Under the current interpretation of Lindke, state legislators are effectively immune from § 1983 suits alleging First Amendment violations on social media. They can block constituents and delete comments that express dissenting political viewpoints. The modern town hall may be online,[19] but under the collective action requirement, citizens who are silenced there by their representatives may have no attainable remedy.[20] The representative gets the benefit of government resources to amplify their voice, while constituents lose the ability to challenge the suppression of theirs.
If left unclarified, the current conception of the Lindke doctrine could potentially allow legislators and members of other representative bodies to subdue an essential mechanism of democracy with complete and total impunity.[21] This subversion of First Amendment rights is wholly incompatible with core American values.
It is worth noting that courts have acknowledged that Lindke may not be the final word on the intersection of public officials, social media, and the First Amendment.[22] In Fox v. Faison, for example, the court acknowledged that the Lindke opinion fails to mention the critical distinctions between executive and legislative branch officials and doesn’t address whether these affect how the state action test is applied.[23] As such, courts will likely have to grapple with further Lindke-related questions in future cases.
Vanderbilt Law School’s Stanton Foundation First Amendment Clinic filed an amicus brief in Detiege v. Jackson on behalf of First Amendment organizations and advocates calling for further clarification in the application of the Lindke standard.
[1] See Barron v. Kolenda, 203 N.E.3d 1125, 1135 (Mass. 2023) (“John Adams explained that the right of assembly was a most important principle and institution of self-government, as it allowed ‘[every] Man, high and low … [to speak his senti]ments of public Affairs.’”); see also Andrew J. Clarke & Daniel Markovits, Congressional Town Halls and Legislative Effectiveness 1 (Ctr. for Effective Lawmaking, Working Paper, Nov. 02, 2022) (“Over thousands of meetings each year, constituents gather in coffee shops and local community buildings to speak directly to their lawmaker. Town hall meetings give citizens space to petition their government for a redress of grievances and speak truth to power in a public forum.”).
[2] See Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802 (1985) (recognizing three types of fora: “the traditional public forum, the public forum created by governmental designation, and the nonpublic forum”).
[3] See Putnam Pit, Inc v. City of Cookeville, Tenn., 221 F.3d 834, 843–44 (6th Cir. 2000) (stating that determining whether a government official created a public forum requires the court to examine “whether the government has made the property generally available to an entire class of speakers or whether individual members of that class must obtain permission to access the property”).
[4] See Minn. Voters All. v. Mansky, 585 U.S. 1, 11 (2018) (explaining that in public forums, viewpoint-based restrictions are strictly prohibited).
[5] See Packingham v. North Carolina, 582 U.S. 98, 107 (2017) (reasoning that by prohibiting sex offenders from using social media, “North Carolina with one broad stroke bars access to what for many are the principal sources for . . . speaking and listening in the modern public square”).
[6] In fact, Facebook even has a U.S. Politics & Government Outreach division, which liaisons “with local government officials, elections offices, government organizations, campaigns, and political organizations on building presences on Meta’s suite of products.” Meta, Politics & Government Outreach, Associate Manager, Daybook (Apr. 7, 2022), https://www.daybrook.com/jobs/vnaLXi3HeW7Z5t72Y.
[7] See, e.g., Davidson v. Randall, 912 F.3d 666, 687 (4th Cir. 2019) (finding that the interactive component of the Board of Supervisors’ Chair’s Facebook page amounted to a public forum); Scheffler v. Chitwood, 2024 U.S. Dist LEXIS 195102, at *11 (M.D. Fla. Oct. 28, 2024) (concluding that the law supported the parties’ stipulation that a Facebook page constituted a limited public forum) (citing People for the Ethical Treatment of Animals v. Tabak, 109 F.4th 627, 634 (D.C. Cir. 2024)).
[8] 601 U.S. 187, 194 (2024).
[9] Id.
[10] Id.
[11] Fox v. Faison, 798 F.Supp.3d 809, 820–824 (M.D. Tenn. Aug. 19, 2025). Nor is the Middle District of Tennessee the only court holding that individual legislators lack the ability to speak on behalf of the state. See also Detiege v. Jackson, 2025 WL 2380730, at *12 (W.D. La. Aug. 15, 2025) (“[W]hile the Louisiana government is intended to be representative, that does not mean individual legislators have authority to solicit input or make announcements on the State’s behalf.”).
[12] Fox, 798 F.Supp.3d at 822 (“[A]n individual state legislator never has the authority to speak on behalf of the state, even when he is engaged in his official duties of proposing and voting for or against proposed legislation, because legislators ‘can take action only collectively.’”) (internal quotations omitted). This argument may not apply, however, when a position is explicitly granted individual authority. See Garnier v. O’Connor-Ratcliff, 136 F.4th 1181, 1189–90 (9th Cir. 2025) (rejecting the argument that school board members do not possess individual authority to speak on behalf of the state because the bylaws vested authority in each individual trustee).
[13] See Fox, 798 F.Supp.3d at 824 (describing how some of the defendant state representative’s staff “were engaged in creating content…for the [c]aucus social media page, and this content was also made available to Caucus members to distribute to the public and to use on their own social media pages”).
[14] See, e.g., Garnier, 136 F.4th at 1189–90 (discussing this requirement in the context of a school board); Pinkhasov v. Vernikov, 2024 WL 2188356, at *2 (E.D.N.Y. May 15, 2024) (applying Lindke to a Twitter account managed entirely by New York City entirely by New York City Councilmember Vernikov and comprised of tweets of “of both a public and political nature.”).
[15] See 28 U.S.C. § 1983.
[16] See Fox, 798 F.Supp.3d at 823–24 (conceding that it was customary for legislators to communicate with their constieunts on social media and that “[a] Tennessee state legislator arguably acts in furtherance of his official duties,” but declining to find the defendant had the authority to speak on behalf of the state).
[17] 443 U.S. 111, 133 (1979).
[18] 408 U.S. 501, 512 (1972).
[19] See Packingham v. North Carolina, 582 U.S. 98, 107 (2017).
[20] Nor is the Middle District of Tennessee the only court holding that individual legislators lack the ability to speak on behalf of the state. See Detiege v. Jackson, 2025 WL 2380730, at *12 (W.D. La. Aug. 15, 2025) (“[W]hile the Louisiana government is intended to be representative, that does not mean individual legislators have authority to solicit input or make announcements on the State’s behalf.”).
[21] See Citizens United v. FEC, 558 U.S. 310, 339 (2010) (“[s]peech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people . . . The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”).
[22] See Fox v. Faison, 798 F.Supp.3d 809, 824 (M.D. Tenn. Aug. 19, 2025).
[23] Fox, 798 F.Supp.3d at 824.