Blocked by city manager, Facebook user gets second chance at discovery in First Amendment case

CINCINNATI (CN) — In the wake of a U.S. Supreme Court ruling, an appeals court panel ruled additional evidence is needed to determine whether a city manager violated his constituent’s First Amendment rights by blocking him on Facebook.

Kevin Lindke sued Port Huron, Michigan, City Manager James Freed after Freed blocked him on Facebook following comments that were critical of the city’s handling of the Covid-19 pandemic.

U.S. District Judge Mark Goldsmith, a Barack Obama appointee, dismissed the lawsuit in September 2021 and found Freed’s posts on his personal page did not constitute state action, even though they often dealt with the city’s government.

Lindke appealed, first to the Sixth Circuit and then to the nation’s high court, where justices unanimously agreed that politicians are permitted to block users from their personal social media pages.

Writing for the high court, Justice Amy Coney Barrett, a Donald Trump appointee, laid out a new test for courts to determine when a politician’s online speech can be considered state action.

The test requires courts to determine if an official “possessed actual authority to speak on the state’s behalf” and “purported to exercise that authority when he spoke on social media.”

Against that backdrop, the Sixth Circuit panel on Wednesday remanded Lindke’s case to federal court for additional discovery.

U.S. Circuit Judge Amul Thapar, a Trump appointee, wrote the court’s opinion and began with an analysis of the Supreme Court’s updated test and, specifically, whether a state actor has authority to speak on behalf of the government by way of “custom or usage.”

“Freed might have actual authority in the absence of written law if ‘prior city managers have purported to speak on [the state’s] behalf and have been recognized to have that authority for so long that the manager’s power to do so has become “permanent and well-settled,”’” he wrote.

Thapar emphasized if there was no authority for Freed to speak on the government’s behalf, the inquiry is over, but he went on to detail the second part of Barrett’s test: whether Freed exercised his authority when he made posts on Facebook.

“Resolving this second prong requires a post-by-post analysis,” he wrote. “Accounts like Freed’s, which aren’t clearly labeled as either personal or official, may contain some posts made in a personal capacity and others in an official capacity. Consequently, Lindke must identify ‘specific posts’ in which Freed purported to exercise authority to speak on the state’s behalf. It’s not the district court’s job to comb through the offending account.”

Thapar pointed out that accounts with disclaimers about whether they are personal or private help delineate between official and non-official speech, but reiterated that with Freed’s account, a “context-specific, totality-of-the-circumstances inquiry” is necessary.

As a result, he granted Lindke’s request for a limited remand to the district court to allow for more specific discovery in light of the Supreme Court ruling.

“The discovery Lindke conducted couldn’t have been tailored toward satisfying a legal standard that had eluded all the parties as well as this court,” Thapar wrote.

The appeals court instructed Goldsmith first to determine whether Lindke’s claims have been mooted by the lack of activity on Freed’s Facebook page, which has lain dormant since being deactivated in 2021.

If his claims are viable, Lindke should then be able to search for evidence of a custom or written law that authorized Freed to speak on behalf of the city via social media, according to Thapar.

Finally, if Lindke clears that hurdle, the court should conduct a “fact-intensive analysis of individual posts” to determine whether Freed exercised his authority in the posts themselves or through the deletion of Lindke’s comments.

Thapar pointed out the lower court would then be required to determine the level of scrutiny applied to Freed’s actions and whether the city manager is entitled to qualified immunity, but noted those “interesting questions” must be left for another day.

U.S. Circuit Judge Chad Readler, another Trump appointee, and Senior U.S. Circuit Judge Ronald Gilman, a Bill Clinton appointee, also sat on the panel.

Lindke’s attorney Philip Ellison of Outside Legal Counsel PLC welcomed the second chance.

“The decision marks another major milestone for the protection of the marketplace of ideas, debate, and dissent. We look forward to proving that what Port Huron’s city manager did to Kevin Lindke (and many others) was unfair, un-American, and unconstitutional,” Ellison said in an email.

Freed’s attorney did not respond to a request for comment by press time.

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