Lindke v. Freed

Issues

Can a public official’s social media activity constitute state action regardless of whether the official used the account to perform a governmental duty or exercise an authority of their office?

Oral argument:

October 31, 2023

Court below:

United States Court of Appeals for the Sixth Circuit

This case asks the Supreme Court to determine when, if ever, a politician may block someone from engaging with their social media posts. In this case, James Freed, a city manager, blocked Kevin Lindke from his personal Facebook page and removed Lindke’s comments criticizing Freed’s response to the COVID-19 pandemic. Lindke contends that, because Freed posted about his official duties on his private page, Freed acted as a state official on it and therefore infringed Lindke’s First Amendment rights by blocking him. Freed disagrees, arguing that because Freed blocked Lindke on his personal account rather than his official account, he was not acting as a state official. The Court’s decision could define the scope of politicians’ responsibilities as the use of personal social media for political activity becomes more popular.

Questions as Framed for the Court by the Parties

Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.

Facts

In 2014, James Freed became Port Huron, Michigan’s City Manager. Lindke v. Freed at 1. The city manager of Port Huron is responsible for issuing press releases about the city's policies and seeking input on them from citizens. Id. While serving in this capacity, Freed maintained an active presence on Facebook, specifically by using a page with the username “James.R.Freed1.” Id. Freed established this account before becoming City Manager and continued to use it throughout his tenure as the city manager. Id. at 2. Freed was the only person to administer or post on the page over its entire lifespan. Id.

Facebook offers two primary account types. See Facebook Help Center. One is dedicated to pages that cater to "artists, public figures, businesses, and brands," while the other to individual profiles. Id. Freed’s Facebook page announced him as a public figure. Lindke at 2. Freed’s bio displayed his professional title, a direct link leading to Port Huron's official website, and an associated Port Huron email address. Id.

Freed frequently posted a wide variety of content on his Facebook page, including photos related to his home improvement projects, pictures of his family, bible verses, and information about Port Huron’s policies and activities. Lindke. When the COVID-19 pandemic began and local governments published relevant instructions, Freed began posting on his Facebook page about Port Huron’s COVID-19 responses. Id. Freed’s posts consisted of news articles, data from the local health department, press releases, and sometimes his own commentary on the COVID-19 situation. Id.

Beginning in 2020, Kevin Lindke commented on Freed’s Facebook page four to six times using three separate profiles he maintained. Lindke. Lindke contends that the remarks expressed criticism of Port Huron's response to COVID-19. Id. Among these comments by Lindke was one on a post that showed Freed and the Port Huron Mayor enjoying takeout food which, by Lindke’s characterization, suggested that they were indulging while the city's residents faced hardships. Id. According to Lindke, all of his comments on Freed’s Facebook page were removed, and all four of his Facebook profiles, along with those of four other individuals, were blocked from Freed’s page. Id.

Lindke sued Freed in the Eastern District Court of Michigan under 42 U.S.C § 1983, alleging that by blocking his Facebook profiles and deleting his comments, Freed deprived him of his First Amendment rights. Lindke. Freed filed a motion for summary judgement, which was granted in his favor on September 27, 2021. Id. Lindke appealed the summary judgment to the United States Court of Appeals for the Sixth Circuit. Lindke v. Freed. The Sixth Circuit agreed with the lower court and dismissed Lindke’s case. Id. The United States Supreme Court granted Lindke’s petition for certiorari on April 24, 2023. Id.

Analysis

INTERPRETING “COLOR OF LAW” AND STATE ACTION

Lindke points to the "under color of state law" provision in 42 U.S.C. § 1983, a statute that allows individuals to sue government officials for violating their constitutional rights. Brief for Petitioner, Kevin Lindke at 16. Lindke argues that the central issue at hand is whether Freed's Facebook activities meet the state action requirement to constitute a § 1983 violation by a government official rather than a private actor. Id. Lindke contends that the “under color of state law” language in § 1983 includes government officials who infringe individuals’ constitutional rights while claiming or seeming to act on the authority of their official position, thus qualifying those actions as “state action.” Id. Further, Lindke contends that courts should consider the intended role and function of a public official in evaluating state action. Id. at 25–31. Lindke argues that Freed’s online activities gave the impression of being “under the color of” a state action because Freed's Facebook page featured the city of Port Huron's email address, displayed Freed's title and official headshot, identified Freed as a public figure, was a public Facebook page and not a private profile, and provided a link to the city of Port Huron's website. Id. 40–41. Lindke also adds that Freed used his Facebook page to publicize new city initiatives, disseminate press releases with the city seal, describe city activities in the first person, and engage with constituents on governmental issues. Id. at 41–42. Lindke claims that these activities align with the responsibilities and duties of a city manager. Id.

Freed counters that legal precedents support a rigid, rather than flexible, test. Brief for Respondent, James R. Freed at 36–37. Lindke points to Griffin v. Maryland for support, highlighting that the Supreme Court emphasized in Griffin a government official’s actual duties and legal authority, not their outward appearance or perceived role. Id. at 36. Freed also cites Anderson v. Warner, arguing that Anderson outlines the weight that the Sixth Circuit has historically given to a rigid, authority-centered test for state action. Id. at 37. Freed argues that, in Anderson, the Sixth Circuit correctly dismissed arguments to consider social media use as a criteria for determining when police officers act under "color of state law,” contrasting it with the inherent and real authority conveyed by a police officer's uniform and badge. Id. Freed contends that Lindke's efforts to use the “under color of state law” provision to challenge a government employee's private actions based on perceived authority are thus misguided. Id.

Arguing that his Facebook posts did not constitute state action, Freed maintains that no law or ordinance mandates him to run a Facebook page as City Manager, and that the duties Lindke cites were incorrectly attributed to him. Id. at 42–45. Freed maintains that while he shared some job-related information on his Facebook page, it should not transform his speech into state action. Id. In conclusion, Freed asserts that Lindke's flexible test based on "under the color of law" is a misinterpretation of the statutory language’s historical context and precedent . Id. at 48.

CONGRESSIONAL INTENT AND HISTORICAL CONTEXT OF “COLOR OF LAW”

Lindke argues that the historical context and interpretation of "under color of state law" is compatible with a flexible approach. Brief for Petitioner at 19–21. Lindke asserts that the phrase "under color of" in Anglo-American law originally referred to the King's officers in England who wore the King's coat of arms, thus signifying actions that appeared official, even if not legally sanctioned. Id. Lindke likewise points to a statute from Edward I's reign that distinguished acts done "by color of office" (seemingly official) from those done "by virtue of office" (truly official). Id. Lindke suggests that this approach to describing unauthorized actions by government officials made its way into American law through various statutes and judgements, culminating in its clear incorporation in § 1983, initially part of the Ku Klux Klan Act of 1871. Id. at 21–22.

Lindke goes on to examine the history of the Ku Klux Klan Act, arguing that its drafters intended a flexible interpretation of “under color of law.” Id. at 22–24. In support of this conclusion, Lindke notes that, preceding the Act’s passage, state officials and private citizens worked together in the post-Civil War south to deprive African Americans of their newly guaranteed rights. Id. at 22. Lindke also adds that, in drafting the Act, the Senate substituted the language "under color of" for "under pretense of” where it appeared in a prior bill, with both terms understood to be functionally equivalent. Id. at 23. Finally, Lindke notes that definitions at the time of the Act’s passage make it clear that Congress was focused on the outward appearance or “guise” that a public official was operating under. Id. at 24.

Freed contends that Lindke is incorrect in his interpretation of 42 U.S.C. § 1983, asserting that historical analysis of "under color of law" indicates it was designed to limit suits solely to actions directly rooted in authority granted by a state government. Brief for Respondent at 20–21. Freed notes that The Civil Rights Act of 1871, the original source of 42 U.S.C § 1983, specified that legal action could be taken for deprivation of constitutional rights by anyone acting “under color of” state law. Id. at 21–22. Freed maintains that historical documents, including discussions during the Civil War and Reconstruction eras, reveal that this language in the Act was designed to exclude private conduct not backed by state authority. Id. at 22–25. Freed also claims that Congress has historically used the terms “pretense” and “under color” differently in other laws, such as in a 1790 piracy law which distinguished between acting “under color of any commission from any foreign prince, or state” and acting “on pretense of authority from any person.” Id. at 25. Thus, Freed concludes that Lindke’s argument that “under the pretense of law” and “under color of law” are synonymous is thus unsupported by historical evidence. Id. at 22–25.

EXAMINING THE SIXTH CIRCUIT’S TEST

Lindke contends that the Sixth Circuit's test, which examined whether Freed operated his Facebook page under his official duties and whether he utilized government resources while doing so, is flawed. Brief for Petitioner at 33. Lindke asserts that the test inappropriately centers on a public official's reliance on state authority for social media use and overlooks precedents that suggest assessing state action based solely on duty or authority are overly broad. Id. at 35–36. Lindke points to Polk County v. Dodson, where the court declined to consider a public defender a state actor despite performing government-assigned duties. Id. Lindke goes on to criticize the Sixth Circuit for giving disproportionate weight to the ownership of Freed's account rather than its use, asserting that the Sixth Circuit failed to recognize how public officials can use their social media standing to extend their influence beyond their formal authority. Id. at 36–39. Lindke argues that the Sixth Circuit's approach thus overly shields government employees’ speech, encouraging politicians to ambiguously merge their personal and public roles on social media. Id. at 40-41.

In response, Freed argues that Lindke confuses the guidelines for deciding whether someone is acting on behalf of the state with whether their actions are private or public. Brief for Respondent at 18–19. Freed asserts that for state action to be present, a state actor must be operating under the authority granted to him by the state. Id. at 19–20. Freed argues that alternative metrics are ambiguous and open to misinterpretation, emphasizing the need for a clear distinction between act that are definitively state action and those that are not. Id. at 20–21. Applying his reasoning to the case at hand, Freed argues that to analyze state actions online, specific conduct under state authority must be pinpointed. Id. at 25–26. Freed argues that blocking people on social media lacks such authority and is thus a private action. Id. at 26. Thus, Freed concludes that the Sixth Circuit's test correctly balances state law and individual rights. Id. at 27.

Discussion

BALANCE OF INDIVIDUAL RIGHTS AND STATE INTEREST

Lindke asserts that there should be a flexible approach to evaluating which activities constitute state action because state action inquiries require consideration of the balance of individual and state interests. Brief for Petitioner at 16–17. In favor of a flexible approach, Lindke first argues that a test that fails to balance interests will either be too narrow, risking governmental power abuse, or too broad, potentially compromising individual freedoms. Id. at 17. Second, Lindke posits that since state activities are diverse and sometimes ambiguous, a flexible test is necessary to capture nuanced individual-state relationships. Id. Last, Lindke contends that labeling conduct as "non-state action" dangerously shields it from all constitutional constraints. Id. at 17–19. Thus, Lindke argues, given the Court's historic aversion to broad rulings, it should opt for a more flexible, case-by-case standard. Id.

Freed counters that using a flexible test to determine if a government employee's social media account represents official state action is an inherently shallow and unreliable analysis, as exemplified by the challenges in distinguishing Congresswoman Alexandria Ocasio-Cortez's personal and official Twitter accounts. Brief for Respondent at 32–35. Freed claims that such unreliable analysis will inevitably chip away at the First Amendment rights of government employees. Id. at 29–31. Freed contends that the unreliability of this analysis could lead to overregulation to find government entities liable for, and thereby incentivized to censor, what their employees express on personal social media accounts. Id. Additionally, Freed claims that a flexible test could strip government employees of editorial discretion on their social media, potentially forcing them to choose between banning all comments or tolerating undesirable interactions. Id.

FREE SPEECH OF PUBLIC OFFICIALS

The Foundation for Individual Rights and Expression (“FIRE”), in support of Lindke, contends that when officials use their private social media accounts for government business, those accounts should be treated as official accounts. Brief of Amicus Curiae The Foundation for Individual Rights and Expression (“FIRE”), in Support of Petitioner at 10–11. For example, FIRE notes that President Trump used his Twitter account as a primary avenue to communicate with his constituents. Id. Furthermore, American Atheists, Inc. (“Atheists”), in support of Lindke, argues that if officials’ private accounts are exempted from scrutiny, those officials might conduct official business through their private accounts. Brief of Amicus Curiae American Atheists, Inc., in Support of Petitioner at 22–23. Atheists maintains that officials who use private accounts for official business blur the line between their public and private lives, causing uncertainty about what speech is permissible until after litigation. Id. at 12.

The United States, in support of Freed, responds that public officials would be less likely to speak their minds on social media if they were to know their speech was subject to stringent constitutional restrictions. Brief of Amicus Curiae The United States, in Support of Respondent at 31–33. The United States argues that these officials would therefore lose the chance to share their views and opinions using social media platforms, and society would lose out as well on hearing those views. Id. Furthermore, the United States points out that even if officials were willing to share their views on social media platforms, state employers may choose to create a policy limiting what their employees post on their private social media pages, thus limiting the employees’ free speech. Id.

CONSTITUENTS’ ACCESS TO PUBLIC OFFICIALS

First Amendment Clinics, Citizens, and Journalists (“Clinics”), in support of Lindke, argue that if officials are allowed to block constituents on their social media pages, those constituents would lose access to information and news about public issues. Brief of Amicus Curiae First Amendment Clinics, Citizens, and Journalists (“Clinics”), in Support of Petitioner at 17. For example, Clinics point to a North Carolina case in which a local school district blocked a parent from its Facebook page for violating its “positive comments only” rule by asking whether the school buses would be running on a snowy winter morning. Id. at 19. Clinics note that citizens who are blocked from government social media pages lose that avenue to exercise their right to petition the government for redress of issues and ask for government services. Id. at 20. Often, Clinics contend, politicians conduct polls or rely on constituent comments on their social media in making policy decisions, and blocking access to those forums unfairly disadvantages some constituents over others. Id. at 21.

The National Republican Senatorial Committee (“NRSC”), in support of Freed, responds that candidates have a right to control their own social media platforms, especially since those platforms are often used for electoral advocacy. Brief of Amicus Curiae NRSC, in Support of Respondent at 8. NRSC contends that retaining messages that candidates do not like may fundamentally alter the content of their own message. Id. at 16. NRSC further argues that since in traditional campaign venues, a candidate may remove those people displaying a contrary message, a public official should be allowed to do the same on social media as well. Id. at 8, 16–17. Furthermore, NRSC points out that candidates cannot effectively advocate for themselves if they fear that litigation will disrupt their campaign. Id. at 19–20. The resulting self-censorship, according to NSRC, harms candidates as well as a society that benefits from a marketplace of ideas. Id.