Sixth Circuit takes up officials' use of social media following Supreme Court clarity

CINCINNATI (CN) — A Sixth Circuit panel must determine whether its previous analysis of First Amendment claims brought by the constituent who had comments deleted by a city manager complies with the two-part test enumerated in a recent U.S. Supreme Court decision.

Port Huron, Michigan, City Manager James Freed deleted several of constituent Kevin Lindke’s comments critical of the city’s response to the Covid-19 pandemic and ultimately blocked Lindke from his personal Facebook page, which prompted a First Amendment lawsuit.

U.S. District Judge Mark Goldsmith, a Barack Obama appointee, ruled in September 2021 that Freed’s posts on his personal page did not qualify as state action, even though they routinely dealt with city policy.

According to Goldsmith, Freed “did not use any governmental employees, resources, or devices in maintaining his Facebook page … did not hold out his page as an official channel of governmental communication … [and] neither intended his Facebook page to be an official city manager page nor wanted an official city manager page,” all of which prevented his posts from being qualified as official acts.

Lindke appealed the decision all the way to the U.S. Supreme Court, where it was consolidated with another case, and the nation’s high court ruled in a unanimous March opinion that courts must use a two-prong test to determine whether public officials’ social media pages can only be viewed as official state accounts. First, the official in question must have the authority to speak on behalf of the state when they make social media posts, then they must also claim to be using that authority in the posts themselves.

“The inquiry is not whether making official announcements could fit within the job description; it is whether making official announcements is actually part of the job that the state entrusted the official to do,” Justice Amy Coney Barrett, a Donald Trump appointee, wrote for the court.

On Monday, Lindke’s attorney Philip Ellison of the Hemlock, Michigan firm Outside Legal Counsel PLC was immediately questioned by U.S. Circuit Judge Amul Thapar about whether Freed had “actual authority” to post on behalf of the city.

The Trump appointee reiterated the Supreme Court required either statutory language or a “longstanding custom” to establish that an official has authority to speak on behalf of the government.

“As of now, you haven’t pointed us to a written law or a regulation, so it seems to fall on custom or usage. How do we figure that out?” Thapar asked.

Ellison cited language in the Port Huron city code that directs a city manager to handle city media releases “in case of an emergency,” which he said would undoubtedly include the Covid-19 pandemic.

“The city took the position that it’s the normal practice for the public safety director to address media releases … but the city just had an emergency with a water main break and it was not the director of public safety who responded or went online, it was actually city manager Freed,” the attorney said.

Ellison emphasized Freed repeatedly talked about “the city” or “we” in social media posts made in response to certain emergencies and issues, which he said qualified the messages as official acts.

Freed’s attorney Victoria Ferres of the Port Huron firm Fletcher, Fealko, Shoudy and Francis described her client’s social media behavior as sharing announcements rather than taking any official action.

“This court’s order, prior to this hearing, was for plaintiff to tell us what post was Freed purporting to exercise official authority? And he can’t point to any, because there aren’t any. These were just shares, screenshots, links to newspaper articles, the exact things that Justice Barrett said would not be considered state action,” she said.

Ferres told the panel a decision to remand the case to federal court for additional discovery would give Lindke a “second bite at the apple” and suggested any argument about the type of longstanding “custom” mentioned by Barrett has been forfeited.

“Custom has been in Section 1983 the entirety of this litigation. Kevin Lindke could have taken that position and argued custom, but he chose not to,” she said. “Custom has to be a practice that carries the force of law; it’s not just some one-off. Freed can’t just conjure up some authority on his own, and there is simply no evidence of custom.”

Ellison disputed the point on rebuttal and said the earlier portions of his client’s litigation were focused on separate matters.

“Everything was focused on the appearance and function test, not the duty and authority test,” he told the panel.

U.S. Circuit Judge Chad Readler, another Trump appointee, pushed back. “But that was your choice, that’s how you chose to frame the case,” he said.

Ellison replied: “I don’t think I can be faulted for not being the soothsayer to know that the test would change in the way the U.S. Supreme Court has said. There are other issues that need to be sussed out, but the key issue right now is what is the appropriate test. And now that we know that, we should be given the chance to meet it.”

U.S. Circuit Judge Ronald Gilman, a Bill Clinton appointee, rounded out the panel. The judges did not indicate how or when they would rule.

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