U.S. Supreme Court weighs if public officials may block critics on social media

Washington — The U.S. Supreme Court heard arguments Tuesday in a Michigan case asking whether a city official in Port Huron violated the First Amendment of a local resident when the official deleted Facebook comments and eventually blocked the critic from his page.

The question before the high court is what factors the courts should consider to determine whether the government official was acting as a government official "under the color of" law or in their personal capacity when posting on social media.

The justices wrestled Tuesday with how to best balance the free-speech rights of citizens and their ability to interact with public officials, without potentially chilling the free-speech rights of government employees themselves.

Chief Justice John Roberts noted that government officials' social media pages often feature a mix of both government-job posts and "all sorts of other things, whether it's cats or children or whatever."

"It seems to me that that effort to disentangle the two things doesn't really reflect the reality of how social media works," Roberts said.

The Michigan case centers on Port Huron City Manager James Freed, whose Facebook page included mix of personal posts related to his family, his dog, home improvement projects, as well as posts related to official city business.

A lawsuit arose after Freed deleted critical comments by Kevin Lindke and eventually blocked Lindke from commenting on his page, so that Lindke could no longer respond to Freed's posts.

Lindke, an East China resident known for harassing public officials, sued Freed in Detroit U.S. District Court, arguing that Freed's deleting his comments and blocking him on the social media site violated his First Amendment rights.

The district court and the U.S. Court of Appeals for the Sixth Circuit both ruled in favor of Freed, and Lindke asked the justices to review his case last year. Both men were in the courtroom Tuesday.

"Based on the arguments and the responses from the justices, I like our our odds," Lindke said afterward outside the court.

"One way or the other, we're gonna get a rule in place here and we're gonna get the clarification that both sides need, and I think it's going to help public officials and is gonna help constituents," Lindke added.

Freed said it was a surreal moment to be inside the courtroom of the nation's highest court and joked about how much the justices made reference to posts about his family's now-late dog, Winston.

"The justices seemed to understand the consequences for the 21 million public officials across the country if we can't have a private life, if we don't have the ability to protect ourselves from convicted felons and convicted stalkers from coming after your family and yourself," Freed said.

Mixing personal and professional online

The Port Huron suit is one of a pair of cases that the high court is considering related to this First Amendment issue and social media. The other is out of California, where parents sued after school board members in the Poway Unified School District blocked critics on their Facebook and Twitter accounts. The circuits have split on the issue.

The cases are reminiscent of arguments brought in relation to former President Donald Trump's Twitter account. In 2019, the Second Circuit ruled that Trump's account was a public forum, and that he could not block certain users because he disagreed with their viewpoints.

The appeals court reasoned that Trump operated the account as part of his official role as a government official, rendering him subject to the First Amendment. Trump appealed to the Supreme Court, which in 2021 said the case was moot because Trump was no longer in the White House.

Lindke is asking the high court to strike the down the Sixth Circuit's ruling, which held that Freed didn't operate his Facebook page as part of his official city duties, so his blocking of Lindke couldn't be fairly attributed to the state and, therefore, did not violate Lindke's free speech rights.

More:Michigan renegade unnerves the powerful, becomes focus of Supreme Court case

More:Port Huron city manager vaults from poor childhood to case before Supreme Court

The appeals panel reasoned that Freed's Facebook activity didn't draw on his state authority, wasn't part of his official duties, and the page didn't belong to the city but to Freed. He had created it while in college ― years before Freed was appointed Port Huron's top municipal official in 2014, and he used no government employees to maintain it.

Lindke attorney Allon Kedem argued that the courts should consider the page's appearance and function and that, under that proper test, Freed's activity constituted "state action."

"If you hold yourself out as doing your job through your page, that is sufficient," Kedem said.

Kedem emphasized that Freed’s page changed after the COVID-19 pandemic began to include more city-related content, arguing that Freed established the page as a channel for that information.  

"I would have thought that the 'what it looks like' is the worst test for you, because what this looks like is there are a lot of baby pictures and dog pictures and obviously personal stuff, and intermixed with that, there is communication with constituents about important matters," Justice Elena Kagan said.

"But it's hard to look at this page as a whole … and not think that surely this could not be the official communication channel. It's not like any town I've ever seen.”

Justice Samuel Alito asked Kedem about a hypothetical page where 95% of the posts are personal. Kedem acknowledged that would be a harder case to make for state action, but he’d still make it.

“Look, if there’s only one place to go for interactions about directives that he himself had issued – the fact that he posts a lot about cats or whatever personal things he wants to post about, that doesn’t change that if you get blocked from that page, you’re suddenly losing access to a lot of information,” Kedem said.  

Justice Neil Gorsuch asked about a scenario in which the individual harasses the public official on personal posts about his cats or children, and the official gets frustrated and blocks them. Would that be state action?

“The answer is there is state action but it would probably easily pass the First Amendment,” Kedem said.

Gorsuch also expressed concern about the free-speech rights of public servants that would be limited by a broad test for state action.

“There's some irony on the other side to say the way to solve the First Amendment problem is to turn it all into government speech, so the government controls what millions of civil servants in — in towns large, small and the federal government alike, what they can and cannot say in the public forum,” Gorsuch said.

This point was echoed by Freed attorney Victoria Ferres, who said that Lindke’s test would result in self-censorship for government employees, despite precedent they do not lose their free-speech rights “merely by virtue of public employment.”

“After being sued, Mr. Freed deactivated the page and stopped speaking to his family and friends and the public on Facebook because he did not want to lose control over his own speech by the threat of state action,” Ferres said.

Ferres advocated for the justices to adopt the Sixth Circuit’s "duty and authority" test for state action.

Did Freed invite criticism?

Justice Sonia Sotomayor asked whether Freed, by way of sharing city information on his page, was “inviting” the public to comment on his performance as a public official.

“You’re claiming this was … not an open square site where he was sharing business, work information on a regular course?" Sotomayor said.

Ferres said no, noting that often people would questions related to the city and Freed didn't respond.

Ferres did acknowledge under questioning that had Freed used his Facebook page to stream a City Council meeting during the pandemic, that might qualify as state action in that case.

“The biggest problem that we have in this case is that without this type of bright-line rule, we're not looking to anything objective,” Ferres said.

“There is going to be an influx in litigation, and government employees won't know when or when they cannot talk about their jobs on social media, which we know … is their right to do.”

Roberts jumped in to ask whether in this case, the “significant" factor is that there wasn't any other place for constituents of the town to go for information. Ferres said, no, because all the city information that Freed shared on Facebook were reposts of information that had already been shared elsewhere.

Kagan suggested that people might have gone to Freed’s site because he offered “one stop shopping” for town information, and “they could see pictures of his dog too and that was nice.”

“Rest in peace to his dog, but -- it doesn't matter that someone wanted to go see his site,” Ferres replied.

“The city manager position is not a public-facing position. It's not something like a press secretary where they are required to speak to the public.”

A decision in the case is expected next year.

mburke@detroitnews.com