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When Is Government Official's Blocking Commenter from Social Media Page "State Action"?
The Sixth Circuit disagrees with the Second Circuit in the @RealDonaldTrump case (but maybe not by much).
From Judge Amul Thapar's Sixth Circuit opinion in Lindke v. Freed today, joined by Judges Ralph Guy and Chad Readler:
Like many Americans, James Freed joined Facebook to connect with friends and family. He created a Facebook profile—a private account limited to his "friends"—and used it for years. But eventually, he grew too popular for Facebook's 5,000-friend limit on profiles. So Freed converted his profile to a "page," which has unlimited "followers" instead of friends. His page was public, and anyone could "follow" it; for the page category, Freed chose "public figure."
In 2014, Freed was appointed city manager for Port Huron, Michigan. So he updated his Facebook page to reflect his new title. In the "About" section, he most recently described himself as "Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI." Freed listed the Port Huron website as his page's website, the City's general email for "City Administration and Staff" (CommunityComments@PortHuron.org) as his page's contact information, and the City Hall address as his page's address.
Freed was an active Facebook user whose page featured a medley of posts. He shared photos of his daughter's birthday, his visits to local community events, and his family's weekend picnics. He also posted about some of the administrative directives he issued as city manager. And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.
Freed's Covid-19 posts caught the attention of one disconcerted citizen, Kevin Lindke. Lindke didn't approve of how Freed was handling the pandemic. He saw Freed's posts about new policies and responded with criticism in the comments section. Freed didn't appreciate the comments, so he deleted them. And Freed eventually "blocked" Lindke from the page, which kept Lindke from commenting on Freed's page and its posts.
Lindke sued, claiming this blocking violated Lindke's First Amendment rights, but the Sixth Circuit said no:
Freed's Facebook activity was not state action. The page neither derives from the duties of his office nor depends on his state authority. In short, Freed operated his Facebook page in his personal capacity, not his official capacity….
First, no state law, ordinance, or regulation compelled Freed to operate his Facebook page. In other words, it wasn't designated by law as one of the actual or apparent duties of his office…. [T]here's nothing to suggest operating the page was Freed's official responsibility.
Lindke disagrees, arguing that Freed maintained the page as part of his "job duties/powers as City Manager." Though he identifies no state law or even practice tasking Freed with social-media activity, Lindke points out that Freed believes "regular communication with local businesses and residents is essential to good government." And Facebook is one avenue to fulfill this "essential" task of communicating with constituents.
This argument proves too much. When Freed visits the hardware store, chats with neighbors, or attends church services, he isn't engaged in state action merely because he's "communicating"—even if he's talking about his job. If Port Huron's list of city-manager responsibilities mentioned operating a Facebook page to tell residents about city initiatives, that might be a different story. But Freed's own off-handed reference to "regular communication" can't render every communication state action.
Next, Freed's page did not belong to the office of city manager. Freed created the page years before taking office, and there's no indication his successor would take it over. Indeed, it would make little sense for the new city manager to take over a page titled "@JamesRFreed1." …
Nor does Freed rely on government employees to maintain his Facebook page. Freed is the page's only administrator—none of his staff have access to it. And there's no evidence that staffers were involved in preparing content for Freed to use on the page, or that staff ever posted on Freed's behalf.
Lindke argues that some photos Freed posted "would be impossible for Freed to have done himself," and thus concludes that government employees must be taking his photos. But even if that's true, such minimal involvement isn't enough to transform a personal page into an official one.
It could be different if Freed's employees designed graphics specifically for the page and no other use. But snapping a few candids at a press conference is routine—not a service Freed accesses by the "authority of his office." Indeed, his staff would likely do this even if Freed didn't have a Facebook page. Plus, even if staff took photos at Freed's direction, that would be de minimis help—not enough to render the page state action. So staff support can't prop up Lindke's claim, either.
Lindke presents no other reason Freed's Facebook activity relates to his job duties or depends on his state authority. Instead, he argues that we should find state action where "the presentation of the account is connected with the official's position." And understandably so—several other courts have used that approach, focusing on a social-media page's purpose and appearance. See, e.g., Knight First Amend. Inst. v. Trump, 928 F.3d 226, 234–36 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1220–21 (2021); Davison v. Randall, 912 F.3d 666, 680–81 (4th Cir. 2019); Campbell v. Reisch, 986 F.3d 822, 826–27 (8th Cir. 2021); Charudattan v. Darnell, 834 F. App'x 477, 482 (11th Cir. 2020) (per curiam).
Drawing on those opinions, especially the Second Circuit's analysis in Knight First Amendment Institute v. Trump, Lindke claims that Freed used the "trappings of an official, state-run account" to give the impression that the page operated under the state's imprimatur.
In support of this argument, Lindke points to Freed's use of a city address, email, and website on the Facebook page, along with a profile photo featuring Freed wearing his city-manager pin and his frequent use of "we" and "us." But these "trappings" weren't the only facts the Second Circuit relied on in Knight. Indeed, that opinion emphasized the "substantial and pervasive government involvement with, and control over," President Trump's Twitter account.
No official account directs users to Freed's page, as the White House's Twitter account did in that case. And as discussed above, there's no evidence Freed used government employees to maintain the account, as President Trump did there. So even on Knight's terms, the presentation-based factors Lindke identifies might not be enough….
[T]he factors Lindke points to resemble the factors we consider in assessing when police officers are engaged in state action. That is, Lindke's focus on the page's appearance seems akin to considering whether an officer is on duty, wears his uniform, displays his badge, identifies himself as an officer, or attempts to arrest anyone.
But the resemblance is shallow. In police-officer cases, we look to officers' appearance because their appearance actually evokes state authority. We're generally taught to stop for police, to listen to police, to provide information police request. And in many cases, an officer couldn't take certain action without the authority of his office—authority he exudes when he wears his uniform, displays his badge, or informs a passerby that he is an officer. So in those cases, appearance is relevant to the question whether an officer could have acted as he did without the "authority of his office." Here, by contrast, Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who's a public official.
That's why we part ways with other circuits' approach to state action in this novel circumstance. Instead of examining a page's appearance or purpose, we focus on the actor's official duties and use of government resources or state employees. As explained above, these anchors are rooted in our circuit's precedent on state action. And they offer predictable application for state officials and district courts alike, bringing the clarity of bright lines to a real-world context that's often blurry.
But our state-action anchors are missing here. Freed did not operate his page to fulfill any actual or apparent duty of his office. And he didn't use his governmental authority to maintain it. Thus, he was acting in his personal capacity—and there was no state action….
