U.S. Supreme Court sets test in case of Michigan official deleting Facebook comments

Washington — In a Michigan case, the U.S. Supreme Court unanimously ruled Friday that a public official who blocked comments on his social media page violates free speech rights only if they had "actual authority" to speak on behalf of the government and intended to act in that capacity when "speaking" on social media.

The underlying case examines whether Port Huron City Manager James Freed violated the First Amendment rights of a local resident, Kevin Lindke, when Freed deleted Lindke's Facebook comments in the early days of the COVID-19 pandemic and eventually blocked Lindke from his personal Facebook page.

The high court didn't say whether Freed crossed that line but instead refined the legal test for what factors courts should consider to determine whether someone in Freed's position was acting as a government official "under the color of" law or in their personal capacity when posting on social media.

The district court and the 6th U.S. Circuit Court of Appeals had both ruled in favor of Freed, but the Supreme Court on Friday vacated that judgment and sent the case back down for further proceedings consistent with the justices' new guidance.

The appellate court will have to decide whether Freed met the Supreme Court's two-prong test established Friday.

"We are extremely confident we will prevail there once more," Freed said Friday in a statement.

But Lindke's lawyer, Allon Kedem, said the court had "vindicated" the right of citizens like Lindke to hold public officials accountable when they use personal social media accounts to do their jobs.

He said the justices' adopted test for what social media activity constitutes "state action" requires that an official must not only have state authority to speak but also "purport" to use it ― that is, speak in furtherance of official duties.

"The 'purports' prong of the court’s test is very close to what we proposed, and we’re looking forward to satisfying the test on remand," Kedem told The Detroit News on Friday.

'Ambiguity' of Freed's page

Lower courts have tried to set relatively more "simplistic" tests in cases where a public official has used a social media space for both personal and official purposes, but that's not the approach the justices endorsed Friday, said Leonard Niehoff, a professor at the University of Michigan Law School who teaches First Amendment courses.

"I think the message from the Supreme Court, unsurprisingly, is that there is no single, simple test," Niehoff said.

"The most important point in the opinion in many respects is this is a fact-intensive inquiry," Niehoff added. "So, the 6th Circuit is going to go back and look at exactly what authority this official had to speak on the matters in question, and then try to figure out whether action was taken on those particular matters."

In writing for the high court, Associate Justice Amy Coney Barrett said the "ambiguity" surrounding Freed’s Facebook page requires a "fact-specific undertaking" by lower courts to determine which posts’ content and function are the most important considerations in the analysis.

She noted that, had Freed’s account had carried a label — for example: “this is the personal page of James R. Freed” — "he would be entitled to a heavy presumption that all of his posts were personal." But Freed’s page was neither labeled “personal” nor “official.”

"A post that expressly invokes state authority to make an announcement not available elsewhere is official, while a post that merely repeats or shares otherwise available information is more likely personal," Barrett wrote.

"Lest any official lose the right to speak about public affairs in his personal capacity, the plaintiff must show that the official purports to exercise state authority in specific posts."

Barrett noted that Freed's being a public employee also isn't "determinative," saying that the distinction between state action and private conduct "turns on substance, not labels." She also said it wouldn't be enough for Lindke to show that Freed has just "some" authority to communicate with residents on behalf of Port Huron: "The alleged censorship must be connected to speech on a matter within Freed's bailiwick."

Barrett also added that the "nature" of the social media tool or technology matters to the legal analysis.

She noted that, for example, because Facebook’s blocking tool applies to his entire page, a court would have to consider whether Freed had engaged in state action with respect to any of Freed's posts on which Lindke wanted to comment.

Background

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

Lindke, an East China resident known for badgering public officials, in March 2020 posted comments on Facebook critical of Freed's handling of the pandemic.

After Freed deleted the comments and blocked him from his page, Lindke sued Freed in Detroit U.S. District Court, arguing that Freed was acting in his official capacity as city manager and violated Linkde's First Amendment rights when he silenced his speech.

The 6th Circuit concluded that Freed had operated his Facebook page in a personal capacity and not as part of his official city duties, so his blocking of Lindke did not violate free speech rights.

The unanimous three-judge appeals panel reasoned that Freed's Facebook activity didn't arise from or draw on Freed's state authority, wasn't part of his official duties, and that the page didn't belong to the city but to Freed, noting he had created it years before he was appointed the city's top municipal official in 2014 and that he used no government employees to maintain it.

Circuit Judge Amul Thapar in writing for the panel acknowledged that the ruling departed from the approach taken by other federal appellate courts like the 9th Circuit on this question by focusing on the public official's duties and use of government resources or employees, and not also considering the page's appearance or purpose to determine if the activity constituted "state action."

In their arguments to the justices, Lindke's attorney Kedem had argued to toss out the 6th Circuit decision, saying the courts should consider the page's appearance and function and that, under that proper test, Freed's activity constituted "state action."

Freed attorney Victoria Ferres had urged the justices to uphold the 6th Circuit's "duty and authority" test. She said Lindke’s standard would result in self-censorship for government employees despite precedent that they do not lose their free-speech rights when they become public servants.

She noted that Freed had deactivated his page after being sued because he did not want to lose control over his own speech by the threat of state action.

Two-prong test

Barrett in her opinion acknowledged that private parties can act with state authority, and that public officials also have private lives and their own constitutional rights. But "categorizing conduct" can require a close look in the context of a public official using social media, requiring courts to apply a "fact-intensive" inquiry, she wrote.

The first prong of the test is tracing the action to the state's power and authority. That is, Freed's conduct isn't attributable to the state unless he was "possessed" of state authority to post city updates and register citizen concerns, Barrett wrote. Without these responsibilities — derived from statute, ordinance, custom or prior practice — Freed can't be "blamed" for how he discharged them, according to the justices.

"In sum, a defendant like Freed must have actual authority rooted in written law or longstanding custom to speak for the State," Barrett wrote. "That authority must extend to speech of the sort that caused the alleged rights deprivation. If the plaintiff cannot make this threshold showing of authority, he cannot establish state action."

The second prong of the test for determining state action requires that an official not only possess the state authority but "also purport to use it," Barrett wrote. That is, did the public employee use his or her speech in furtherance of his official responsibility?

A plaintiff would have to illustrate that a government official intended to exercise that authority in specific posts, Barrett added.

"And when there is doubt, additional factors might cast light — for example, an official who uses government staff to make a post will be hard pressed to deny that he was conducting government business," Barrett wrote.

Gregg Leslie, executive director of the First Amendment Clinic at Arizona State University Law School, said the justices produced what is likely to be a "confusing," fact-intensive standard for plaintiffs to grapple with going forward.

"It’s a two-part test that adds a high bar in front of what used to be a good 9th Circuit (appearance and purpose) test," Leslie said.

"Every future case is going to rely on factual development and research and convincing a judge that they meet this two-step approach. It's never good for free speech when they say, yes, you must litigate these based on facts every time."

That's because if someone is blocked from a Facebook page, for example, they might not be able to spend at minimum $20,000 to $30,000 to hire a lawyer and fight it through the court system, Leslie explained.

'Thousands' of cases ahead?

The justices rejected what Leslie at ASU Law and a group of other First Amendment clinics had pushed for in a friend-of-the-court brief ― that the U.S. Supreme Court should adopt a rebuttable presumption of public access to social media accounts operated by public officials.

"We said the presumption should be that once a public official is involved, they are subject to state action standard, so, by default, that attaches. Then the burden is on the public official to go to court and say my account shouldn't be subject to that," Leslie said.

"We're disappointed that the court didn’t take a more practical approach and come up with a standard that works for most people without going to court."

Niehoff at UM's Law School said an interesting question going forward will be how lawyers for state and local governments advise employees of those entities and how they should handle their personal social media pages.

"It's very easy to say, 'Don't do official business on your social media because you might end up in First Amendment trouble.' But the fact is a lot of elected officials use social media to communicate with their constituents to build support for their policies and so on," said Niehoff, who also is an attorney for The Detroit News.

"That advice is usually easier to give than to implement. The interesting thing to watch here won’t be so much what happens in this case but what happens in the thousand other cases coming down the road where public officials try to figure out what to do with their social media accounts in light of this ruling."

mburke@detroitnews.com