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Legal Lessons from the Lindke Standard: What Counts as State Action on Social Media?
In DeVore v. McCombie, Case No. 1:25-cv-00323, 2025 WL 2696304 (N.D.Ill. Sept. 22, 2025), the United States District Court for the Northern District of Illinois granted the plaintiff’s motion to dismiss due to the defendant’s failure to set forth an adequate factual basis supporting an alleged First Amendment violation. Relying on the United States Supreme Court’s decision in Lindke v. Freed, 601 U.S. 187, 21 L.Ed.2d 121, 144 S.Ct. 756 (2024), the DeVore court’s decision reaffirms that a public official’s social media posts and engagements, even when on a page dedicated to their position, do not automatically constitute “state action” for purposes of a claim brought under 42 U.S.C. §1983.
Facts
The defendant Tony McCombie, an Illinois State Representative, created a Facebook page titled “Tony McCombie for State Representative 71st District” during her 2015 campaign. Following her election, the page’s name was changed to “Tony McCombie State Representative.” During both the campaign and her tenure as a State Representative, McCombie’s Facebook page was used to interact with other Facebook users regarding government business. 2025 WL 2696304 at *1.
In 2023, McCombie was appointed House Minority Leader. Following her appointment, she continued to use the “Tony McCombie State Representative” Facebook page (State Representative page). In 2024, McCombie created a second Facebook page titled “Illinois House Minority Leader Tony McCombie” (Minority Leader page). However, even after creating the new Minority Leader page, McCombie continued to utilize her original State Representative page to interact with other users about government business.
Sometime after McCombie’s appointment as Minority Leader, the plaintiff Thomas DeVore posted critical comments on McCombie’s State Representative page. McCombie, who served as the State Representative page’s administrator and exercised discretion over the page, deleted DeVore’s comments and blocked his account. Id. In response, DeVore filed suit against McCombie in both her official and personal capacities, alleging that her conduct violated the First Amendment. Specifically, DeVore alleged that the McCombie’s State Representative page amounted to a “public forum” and, accordingly, McCombie’s deletion of DeVore’s comments and blocking his participation on the page constituted an unlawful content-based regulation. Id. DeVore requested monetary damages, a declaratory judgment, and injunctive relief under 42 U.S.C. §1983.
McCombie filed a motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure and moved to strike DeVore’s claim for monetary damages. 2025 WL 2696304 at *2. In support of her motion, McCombie asserted that DeVore’s claim should be dismissed against her in her official capacity because §1983 does not authorize suits against state officials in their official capacity and, therefore, the court lacked subject-matter jurisdiction over DeVore’s claims. Id. McCombie also asserted that DeVore failed to state any cause of action against her in either capacity. Id. Moreover, McCombie contended that qualified immunity shielded her from any damages claim under Section 1983. (Pg. 5).
Official Capacity Claim
The court first addressed DeVore’s allegations against McCombie in her official capacity as state representative. It agreed with McCombie insofar as the prohibition of damages claims under §1983. However, the court noted that although damages claims were not allowable, DeVore’s requests for declaratory and injunctive relief were prospective in nature and therefore viable. 2025 WL 2696304 at *3. Notwithstanding the allowability of the prospective relief requested by DeVore, the court found that DeVore’s claim was deficient because DeVore failed to assert any facts that would indicate that a policy or custom of the state was cause for the purported First Amendment violations. 2025 WL 2696304 at *3.
Individual Capacity Claim
Regarding DeVore’s individual capacity claim, McCombie argued that under the standards set forth in Lindke, supra, DeVore failed to adequately allege a state action under §1983. Id. The court agreed with DeVore, noting that “[l]iability under Section 1983 attaches only to persons acting ‘under color of law.’ ” Id. The court acknowledged that state action may be particularly difficult to identify when utilizing social media because “the line between a public official’s personal communications and official communications ‘is often blurred.’ ” Id., quoting Lindke, 144 S.Ct. at 766.
Consequently, the court relied on Lindke’s two-pronged test for determining whether social media activity by a public official could be classified as “state action” for purposes of §1983. 2025 WL 2696304 at *4. Under the first prong of Lindke, the court must examine whether the public official has “actual authority rooted in written law or longstanding custom to speak for the State” that “extend[s] to speech of the sort that caused the alleged rights deprivation.” Id., quoting Lindke, 144 S.Ct. at 768. If there is actual authority, the court then must then determine under the second prong, i.e., “whether the public official ‘purported to exercise that authority when [s]he spoke on social media.’ ” Id., quoting Lindke, 144 S.Ct. at 762.
As applied to the facts of the case, the court determined that the DeVore failed to allege any facts identifying a specific law, regulation, or other grant of authority that would authorize McCombie to speak on the state’s behalf in connection with the speech that purportedly caused the First Amendment violations that DeVore complained of. 2025 WL 2696304 at *4. While acknowledging that McCombie’s role as a state representative and as the House Minority Leader undoubtedly vested McCombie with some authority to engage with the public, citing Lindke, supra, the court maintained that DeVore “must show more than that [Defendant] had some authority” and the “alleged censorship must be connected to speech on a matter within [the Defendant’s] bailiwick.” Id., quoting Lindke, 144 S.Ct. at 767.
Applying the first prong of the Lindke test, the court determined that aside from the broad assertion that McCombie served in an official capacity and spoke regarding government business, DeVore provided no factual basis to demonstrate that the discussions on McCombie’s Facebook page were within an area in which she was vested with speaking authority. 2025 WL 2696304 at *4. The court went on to noted that even had the first prong been satisfied, “[a]n official does not necessarily purport to exercise [her] authority by simply posting about a matter within it” and it is “only when Defendant specifically invokes her actual authority as a state legislator and House Minority Leader do her Facebook posts become state action.” 2025 WL 2696304 at *4, quoting, Lindke, 144 S.Ct. at 770.
In sum, the mere posting by a public official about “government business” on a social media account, even if related to the official’s role as such, is insufficient to bring a claim under 42 U.S.C. §1983 absent a showing that the official was speaking under a specific grant of authority and that official purported to invoke the official’s authority under the power of the office.
For more information about First Amendment rights of public employees, see EMPLOYMENT TERMINATION: EMPLOYER OBLIGATIONS AND WORKPLACE CONSIDERATIONS — 2022 EDITION. Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.