Sixth Circuit: Government Official Can Freely Censor Constituents at his Public Facebook Page–Lindke v. Freed

July 6, 2022 · by · in Content Regulation

James Freed is city manager for Port Huron, MI. (It appears this is an appointed, not elected, position). He had a personal Facebook profile that, over time, exceeded the 5k friend cap. Freed converted the profile to a public Facebook page, which anyone could follow, and he categorized himself as a “public figure.” Over time, he took many steps to link the page with his job:

  • the “About” section self-described as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.”
  • he listed the Port Huron website URL as his page’s website.
  • he listed the page’s contact info as the City’s general email for “City Administration and Staff” (CommunityComments@PortHuron.org).
  • he listed City Hall as the page’s street address.
  • he mixed business postings with personal ones, including posts on his administrative directives and public health updates on the COVID-19 pandemic.

In response to the latter, Lindke posted critical comments, so Freed removed the comments and eventually blocked Lindke from the page. Lindke sued for First Amendment violations. Based on the past caselaw, this looks like a clear win for Lindke. It wasn’t.

The Sixth Circuit has adopted an idiosyncratic test for when a government employee’s actions are personal or official: the test is whether the official is “performing an actual or apparent duty of his office,” or if he could not have behaved as he did “without the authority of his office.” The panel tries to explain, unpersuasively IMO, how this test is consistent with clear Supreme Court guidance on these questions. As an outsider to the Sixth Circuit, instead it looks like the Sixth Circuit forked from the precedent and is now entangled in precedent conflicts that the forking inevitably causes.

The panel then applies its idiosyncratic test to social media. To do so, the panel says it looks at the entire account, not individual posts (a good start!). The panel then enumerates situations that would satisfy its state action test:

  • when the law requires the operation of a social media account.
  • when the social media account benefits from state resources (the panel gives the example of a government employee who uses government funds to procure a paid service).
  • when the social media account belongs to an office, not an officeholder (the panel gives the example of a hypothetical Facebook account @KentuckyGovernor).
  • when the social media account is managed by other government employees.

The panel then closes the door (emphasis added): “In all these instances, a public official operates a social-media account either (1) pursuant to his actual or apparent duties or (2) using his state authority. It’s only then that his social-media activity is “fairly attributable” to the state. Otherwise, it’s personal and free from scrutiny under section 1983.”

[Record-scratch] This cannot possibly be the complete universe of official accounts. The most obvious omission is if the employee presents the account to the public as a government account and gives no indication that it’s a personal account. This satisfies the test of being done pursuant to APPARENT duties. However, because this scenario isn’t one enumerated by the panel, the panel says decisively that it would be in the “otherwise, it’s personal” category. That cannot be the right result.

So, based on the panel’s incomplete Internet exceptionalist recapitulation of the forked Sixth Circuit’s precedent, the panel says Freed is in the clear: no statute required his page, the government didn’t pay for the free Facebook page, and he never ran ads through Facebook (?), so “there’s nothing to suggest operating the page was Freed’s official responsibility.” To be clear, the panel literally described all of the ways that Freed communicated to the public that the page was part of his official responsibilities (see the first set of bullets above), but that was on page 2 of the opinion and we’re already up to page 7 so the panel must have forgotten all of that.

Lindke argued that Freed maintained the page as part of his “job duties/powers as City Manager” because he used it to regularly communicate with constituents. The panel condescendingly responds with a make-weight argument, saying “When Freed visits the hardware store, chats with neighbors, or attends church services [do we know Freed is of a religion where he goes to “church,” or is the panel just assuming everyone is?], he isn’t engaged in state action merely because he’s ‘communicating’—even if he’s talking about his job.” Sure, if Freed if shopping at the local Kroger’s and starts chatting with another shopper about local affairs, that’s completely outside the job. But if Freed goes to a town hall and addresses the public about city affairs, that’s within his job. When he labels his Facebook page as a “public figure” and uses it to communicate official city pronouncements, the Facebook page looks a lot more like the former than the latter.

The panel then explains:

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.”…Freed created his page before he took office. It belonged to him before he was city manager, and we have no reason to believe it will change hands if he leaves his post.

OK, so what? The page became state action when Freed used it for his government purposes. It will stop being state action when he isn’t doing that. This isn’t rocket science.

Finally, the panel turns to the obvious conflicts with other precedents, including Knight First Amendment v. Trump and Davison v. Randall, about how the account presents itself to the public. The court doesn’t expressly address the emerging line that distinguishes between campaign accounts, which aren’t state action, and non-campaign accounts, which are (though I question even that). The court distinguishes the Trump case because only Freed posted to his account. Otherwise, “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.” Huh?

Implications

The Court’s Holding. The panel said that Freed can tout his official government role and accomplishments at a public Facebook page–but squelch any unwanted discussion about those accomplishments. Thus, Freed can use his Facebook page to celebrate the brilliance of his taxpayer-funded work and suppress criticism of that work. From the perspective of government accountability, this is the worst of all worlds.

Future Proceedings. This decision would be an excellent candidate for en banc treatment. Maybe the result would be the same due to the Sixth Circuit’s forked precedent, but it would at least give a fresh set of eyes on the panel’s obvious errors and lack of respect for the precedent.

Also, the panel expressly acknowledges that “we part ways with other circuits’ approach to state action in this novel circumstance.” Sounds like we could have an official circuit split to facilitate SCOTUS review.

Other Litigation. I don’t report on all similar government social media lawsuits because these cases are endless. My alerts are filled with them. Why are they so plentiful? The Knight First Amendment opinion was drafted broadly, government officials have thin skins, and unhappy constituents are litigious. Frankly, I would be delighted to see a lower volume of litigation in this area. However, the solution isn’t to make the cases untenable. The solution is to stop government censorship.

What Freed Should Have Done. When Freed converted his account from a personal profile to a public page, he already put himself in a dicey position. If he wanted to divorce it from his official government status–which, I have to imagine, was a contributing factor to having thousands of friends/followers–he needed to strip out anything that indicated he was benefiting from his government role. Certainly stuff like listing official government phone numbers and addresses as associated with the page created the (intentional?) impression that this was an official government page. Even listing his title in the bio imported some of the job’s cachet into the page; maybe he could have disclaimed that by saying it wasn’t an official government page, but then he shouldn’t post official government announcements there. From my position, no matter what arguments Freed made in litigation, the facts as alleged clearly indicate that he viewed the page as an extension of his official job. If that’s what he was doing, then he had to comply with the Constitution.

Alternatively, Freed should have closed down all comments, from friends and constituents alike, and turned the page into a broadcast-only venue. I don’t like this solution because it basically tells constituents that their voices aren’t valued. But it’s better than censorship.

Facebook’s Role in this Mess. Social media services love having government accountholders because they draw audiences and engagement. However, over time, we’ve seen how these accountholders create special problems–most obviously, the dilemma in this case that they can’t manage their pages like other accountholders due to the Constitution.

Facebook and some other social media have already started labeling government accounts, an important (but IMO insufficient) first step. The obvious next step is to turn those accounts into broadcast-only tools and avoid the constitutional traps waiting for those accountholders. Obviously, this reduces engagement and shuts down a communication channel for constituent feedback, but social media is a lousy mechanism for that anyways.

Alternatively (and my preferred solution), if a broadcast-only account is too limited, then social media should suspend those accounts for the duration of the accountholders’ status as a state actor and send those accountholders to other media channels. As we’ve seen over and over, government actors abuse broadcast-only social media tools to engage in propaganda, and social media services should refuse to facilitate that.

Sadly, the Sixth Circuit ruling gave carte blanche to government officials engaging in propaganda so long as they avoid one of the Sixth Circuit’s incomplete list of state action indicators. I hope the social media services are horrified enough by this ruling to make countermoves.

Case citation: Lindke v. Freed, 2022 WL 2297875 (6th Cir. June 27, 2022)

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