November 26, 2025
By Jamie Porter
A recent decision from the U.S. District Court for the Northern District of Illinois, Devore v. McCombie, reinforces the high bar set by the United States Supreme Court in Lindke v. Freed for determining when a public official’s social media activity constitutes government action subject to First Amendments restrictions.
Background – Lindke v. Freed
In March 2024, the U.S. Supreme Court issued its unanimous decision in Lindke v. Freed, establishing the test for assessing whether a public official’s social media activity constitutes government action for the purposes of the First Amendment and 42 U.S.C. § 1983. The case involved James Freed, the city manager of Port Huron, Michigan, who maintained a public Facebook page where he posted about both his personal life and his job. Kevin Lindke, a user who criticized the city’s pandemic response on the page, was blocked by Freed and had his comments deleted. The Supreme Court held that a public official’s social media activity is a governmental act only if the official both (1) possessed actual authority to act on the government’s behalf on a particular matter, and (2) purported to exercise that authority when speaking or taking action in the relevant social-media posts.
The Facts in Devore v. McCombie
The plaintiff, Thomas G. DeVore (a 2022 republican candidate for Illinois attorney general), brought a Section 1983 action against Defendant Tony McCombie, an Illinois State Representative and House Minority Leader, alleging violations of the First Amendment.
McCombie had created a Facebook page in 2015, originally titled “Tony McCombie for State Representative 71st District,” and later changed to “Tony McCombie”. This page had over 17,000 followers and was utilized by McCombie to discuss and interact with users about government business. Hundreds of Illinois citizens participated in the comments section of this page.
At some point during McCombie’s tenure as Illinois House Minority Leader, DeVore posted comments critical of McCombie’s political actions on the Facebook page. In response, McCombie deleted the posts and permanently banned DeVore from the page. DeVore alleged that the Facebook page constituted a “public forum” for First Amendment purposes and McCombie’s actions deleting his comments and banning him were content-based regulations of speech that violated his rights.
The Court Rules in Favor of McCombie
The United States District Court for the Northern District of Illinois, applying Lindke, agreed with McCombie that DeVore failed to adequately allege state action under the two-prong Lindke test. The Court explained that DeVore’s claims failed both prongs of that test:
- Failure to Allege Actual Authority (Lindke Prong 1): DeVore failed to identify any specific law, regulation, custom, or usage vesting authority in McCombie to speak on the state’s behalf regarding the topics of DeVore’s speech related to the alleged First Amendment violations. While McCombie’s roles as State Representative and House Minority Leader presumably granted her some authority to engage with citizens, DeVore did not allege sufficient facts demonstrating that the general discussions on the Facebook page encompassed specific topics within her actual speaking authority.
- Failure to Allege Purported Exercise of Authority (Lindke Prong 2): DeVore did not identify specific Facebook posts in which McCombie purported to exercise government authority. Generalized accusations that McCombie posted about “government business” or that the posts were “in relation to her roles” were insufficient to show that she exercised the power of her office when making those posts. The Court noted that officials have the right to speak about public affairs in their personal capacity, and simply posting about a matter within their authority does not automatically constitute state action.
The Implications of Devore v. McCombie
The Devore ruling confirms that the rigorous two-prong Lindke test is the governing framework for determining state action by officials in Illinois when they manage their social media accounts, and that, absent clear and specific allegations satisfying that test, courts will protect the rights of public officials to speak about public affairs in their personal capacities without triggering First Amendment restrictions. The court’s ruling has two key implications for this type of social media litigation:
- Pleading Specificity is Essential: A plaintiff attempting to sue a municipal official for blocking or deleting content must tie the alleged censorship to specific official posts where the official was exercising actual authority granted to them by law, ordinance, custom, or usage. General claims that an official’s social media page discusses “job-related topics” or “government business” will not be sufficient to overcome a motion to dismiss.
- Actual Authority Must Be Traceable: The official’s actual authority must extend to the type of speech being discussed. The scope of an official’s authority can be determined based on statute, ordinance, regulation, custom, or usage. A plaintiff must be able to point to a specific social media post where the official exercised actual authority to speak on the government’s behalf.
For additional guidance on social media and the First Amendment, please contact Jamie Porter or any other Elrod Friedman attorney.