When is blocking a government official’s commenter from the social media page a “state action”?
In the opinion of Judge Amul Thapar on the Sixth Circuit in Lindke v. Liberated 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 it got 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 named City Manager of Port Huron, Michigan. So he updated his Facebook page to reflect his new title. In the “About” section, he recently described himself as “Lucy’s Dad, Jessie’s Husband and City Manager, Citizens Administration Manager 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” ([email protected]) as his page’s contact information, and the city hall address as its page address.
Freed was an active Facebook user whose page featured a mix of posts. He shared photos from his daughter’s birthday, her visits to local community events and her family’s weekend picnics. He also released some of the administrative directives he issued as City Manager. And when the Covid-19 pandemic hit in the spring of 2020, he also posted about it, sharing policies he initiated for Port Huron and news articles about public health measures and statistics.
Freed’s messages about Covid-19 caught the attention of a bewildered citizen, Kevin Lindke. Lindke didn’t approve of Freed’s handling of the pandemic. He saw Freed’s posts about the political news 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 prevented Lindke from commenting on Freed’s page and his posts.
Lindke sued, saying the blocking violated Lindke’s First Amendment rights, but the Sixth Circuit said no:
Freed’s Facebook activity was not a state action. The page does not derive from the duties of his office nor does he depend on his state authority. In short, Freed operated his Facebook page in a personal capacity, not in an official capacity….
First, no state law, ordinance, or regulation required Freed to operate its Facebook page. In other words, it was not designated by law as one of the real or apparent duties of his office…. [T]there is no suggestion that the operation of the page was the official responsibility of Freed.
Lindke disagrees, arguing that Freed maintained the page as part of his “duties/powers as city manager.” While he doesn’t identify any state law or even practice charging 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 a way to fulfill this “essential” task of communicating with voters.
This argument proves too much. When Freed visits the hardware store, chats with neighbors, or attends church services, he’s not engaged in state action simply because he’s “communicating” — even if he’s talking about his job. If the City Manager of Port Huron’s list of responsibilities mentioned operating a Facebook page to update residents on city initiatives, that might be a different story. But Freed’s own flippant reference to “regular communication” cannot make all communication status action.
Second, Freed’s page did not belong to the city manager’s office. Freed created the page years before taking office, and there is no indication that his successor would take it over. Indeed, it would make little sense for the new city manager to take over a page titled “@JamesRFreed1”. …
Freed also does not rely on government employees to maintain its Facebook page. Freed is the only administrator of the page – none of his staff have access to it. And there is no evidence that staff members were involved in preparing the content that Freed will use on the page, or that staff ever posted on Freed’s behalf.
Lindke argues that some of the photos released by Freed “would be impossible for Freed to take himself”, and thus concludes that government employees must take his photos. But even if that’s true, such minimal involvement isn’t enough to turn a personal page into an official one.
It might be different if Freed employees were designing graphics specifically for the page and not for any other use. But taking a few candids at a press conference is routine — not a service Freed accesses by “the authority of his office.” Indeed, his staff probably would even if Freed didn’t have a Facebook page. Also, even if the staff took pictures under Freed’s guidance, it would be minimal help, not enough to render the page status action. The support staff can therefore also not substantiate Lindke’s claim.
Lindke offers no other reason why Freed’s Facebook activity is related to his office or under his public authority. Instead, he argues that we should find state action where “the presentation of the account is tied to the position of the official.” And it’s understandable – several other courts have used this approach, focusing on the purpose and appearance of a social media page. See, for example, Prime Knight Edit. Inst. against trump928 F.3d 226, 234–36 (2nd Cir. 2019), canceled as a theoretical sub-name. Biden v. Knight First Amendment. Inst., 141 S.Ct. 1220, 1220–21 (2021); Davison vs. Randall912 F.3d 666, 680–81 (4th Cir. 2019); Campbell v. Reisch986 F.3d 822, 826–827 (8th Cir. 2021); Charudattan vs. Darnell834 F. App’x 477, 482 (11th Cir. 2020) (by curiam).
Based on these opinions, in particular on the analysis of the second circuit in Knight First Amendment Institute vs. TrumpLindke claims that Freed used “official state-run account trappings” to make the page appear to be operating under state imprimatur.
In support of this argument, Lindke points to Freed’s use of a city address, email and website on the Facebook page, as well as a profile picture showing Freed wearing his city manager pin and his frequent use of “us” and “we”. But these “apparatus” were not the only facts on which the Second Circuit relied. Knight. Indeed, that opinion underscored “the government’s substantial and pervasive involvement in and control over President Trump’s Twitter account.”
No official account directs users to Freed’s page, as the White House Twitter account did in this case. And as discussed above, there is no evidence that Freed used government employees to maintain the account, as President Trump did there. So even on Knight‘s, the presentation-based factors identified by Lindke might not be enough….
[T]it factors Lindke’s points to resemble the factors we consider to assess when police officers are engaged in state action. That is, Lindke’s emphasis on page appearance seems akin to whether an officer is on duty, wearing his uniform, displaying his badge, identifying himself as an officer, or attempting to arrest somebody.
But the resemblance is weak. In the cases of police officers, we are interested in the appearance of the officers because their appearance actually evokes the authority of the state. We are usually taught to stop for the police, to listen to the police, to provide information requested by the police. And in many cases, an officer could not take certain actions 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. Thus, in these cases, appearance is relevant to the question of whether an officer could have acted as he did without “the authority of his office”. Here, by contrast, Freed gains no authority by posing as city manager on Facebook. Its posts do not have the force of law simply because the page indicates that it belongs to a person who is a public official.
This is why we separate ourselves from the approach of the other circuits for the action of the State in this new circumstance. Instead of examining the appearance or purpose of a page, we focus on the actor’s official duties and the use of government resources or state employees. As explained above, these anchors are rooted in the precedent of our circuit on state action. And they offer predictable application for state officials and district courts, bringing the clarity of bright lines to often blurry real-world context.
But our state action anchors are missing here. Freed did not operate his page to fulfill any real or apparent obligation of his office. And he did not use his governmental authority to maintain it. Thus, he was acting in a personal capacity – and there was no state action….