Social Media and Trustees: New Case Sheds Light on Personal Accounts

Texas school board members often use social media to promote their platforms, inform the electorate, and communicate accomplishments while in office. As courts grow more sophisticated in their analysis of the law that applies to each type of social media platform, it’s important for trustees to understand the following guidelines when they use their professional and personal accounts.  

Generally Speaking

•  A personal account should remain personal. Don’t use the account to talk about school board election activities or district business in an official capacity. 
• If you launched a campaign account while running for office and want to maintain it for future elections, don’t use the account to discuss officeholder activities or transact district business. 

If the platform allows, you may identify a social media account as either a personal or campaign account, reserving all rights to determine the account’s content and directing individuals who want to interact with you in an official capacity to another means of communication. To avoid confusion, be clear and consistent with your use of each type of account. 

Social Media and Free Speech 

In 2024, the U.S. Supreme Court decided a case involving the First Amendment’s application to interactions between a local government official and members of the public on the official’s Facebook page. James Freed maintained a public Facebook page that identified him as the city manager of Port Huron, Michigan. He used the page primarily for posts related to his personal life, including bible verses, home improvement updates, and pictures of his dog and daughter. He also posted about his job. For example, he shared news about city projects, highlighted communications from other city officials, and sometimes solicited opinions from the public. 

During the pandemic, citizen Kevin Lindke commented on one of Freed’s posts, saying that the city’s response to COVID-19 was “abysmal.” Freed deleted the comment and eventually blocked Lindke. Lindke sued Freed, arguing that Freed had violated his right to free speech under the First Amendment. According to Lindke, Freed’s social-media activity constituted state action because Freed’s Facebook page looked and functioned “like an outlet for city updates and citizen concerns.” 

The court found that Freed’s conduct could not be attributable to the state unless he was “possessed of state authority” to post city updates and register citizen concerns: “When a government official posts about job-related topics on social media, it can be difficult to tell whether the speech is official or private. We hold that such speech is attributable to the State only if the official (1) possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when he spoke on social media.” Lindke v. Freed, No. 22-611, 2024 WL 1120880 (Mar. 15, 2024). 

Freed’s page was not identified as either “personal” or “official,” making its legal status ambiguous. The court noted that if he had used a disclaimer (e.g., “the views expressed are strictly my own”) he would have been entitled to a heavy presumption that he was acting in a private capacity. 

Public vs. Private 

The Lindke case clarifies that a privately owned social media account is not converted into public property just because the account is maintained by a public official. Unfortunately, applying this standard to a Texas school board member’s social media account is not straightforward. Until there is legal precedent established that is more directly on point, here are some guidelines for keeping a private account clearly private. 

Don’t Use School District Resources to Create or Maintain the Account

The Texas attorney general has indicated in informal rulings regarding information requested under the Texas Public Information Act that he does not consider a social media account to be public information if: 

• The account is a personal account maintained in the official’s private capacity; 
• The account is maintained and managed solely as a private citizen; 
• Information on the account was not created or maintained in connection with the transaction of official business; and 
• The governmental body did not maintain, own, spend public funds on, or otherwise have access to the account in a manner different from the general public. 

Tex. Att’y Gen. OR2019-01708 (2019); Tex. Att’y Gen. OR2019-14729 (2019). 

Add a Disclaimer

As explained above, the court observed that if a public official’s account has a label (e.g., “this is my personal page”) or a disclaimer (e.g., “the views expressed are strictly my own”), courts should presume all posts on the page are personal. 

Redirect Inquiries About School District Business

Even if an account purports to be personal, if a public official uses the account to transact public business, the platform can be considered a “mixed use”— a place where some posts are in the official’s personal capacity and others are in the official’s official capacity. To avoid this confusion, do not initiate official actions or announcements on your personal account. If members of the public attempt to reach you to transact official business, direct them to an official district account (or person) or to your officeholder account or email. 

Informally Forwarding School District Announcements Is Still Private

The court in Lindke distinguished a governmental use of a social media platform (a mayor making an announcement on behalf of the city that is released solely on social media) from a private use (a city official forwarding the city’s official announcement to his “friends”). 

Use Only Private Resources to Create and Maintain a Personal Campaign Account

Public dollars can never be used for political advertising. Tex. Elec. Code § 255.003. 

Like all citizens, individual board members may voice their opinions about matters of public concern, whether that occurs in a formal letter to the editor or an informal social media post. But just because a board member has a legal right to say something online doesn’t always mean it’s a good idea. More guidelines for Texas school board members using social media can be found at TASB School Law eSource. See Social Media Guidelines for School Board Members (TASB login required).

This article is provided for educational purposes and contains information to facilitate a general understanding of the law. References to judicial or other official proceedings are intended to be a fair and impartial account of public records, which may contain allegations that are not true. This article is not an exhaustive treatment of the law, nor is it intended to substitute for the advice of an attorney. Consult your own attorney to apply these legal principles to specific fact situations.