“[W]e previously held that actual or apparent authority could support a finding of state action. But the Supreme Court made clear that only actual authority could suffice.” (citation omitted)
How later courts described this case
- “[W]e previously held that actual or apparent authority could support a finding of state action. But the Supreme Court made clear that only actual authority could suffice.” (citation omitted)
Written by the judges who cited it.
The opinion
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
KEVIN LINDKE,
│
Plaintiff-Appellant, │
> No. 21-2977
│
v. │
│
JAMES R. FREED, in his official and personal │
capacities, │
Defendant-Appellee. │
┘
On Remand from the Supreme Court of the United States.
United States District Court for the Eastern District of Michigan at Detroit.
No. 2:20-cv-10872—Mark A. Goldsmith, District Judge.
Argued: July 29, 2024
Decided and Filed: August 21, 2024
Before: GILMAN, THAPAR, and READLER, Circuit Judges.*
_________________
COUNSEL
ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for
Appellant. Victoria R. Ferres, FLETCHER, FEALKO, SHOUDY & FRANCIS, PC, Port
Huron, Michigan, for Appellee. Katie Fallow, KNIGHT FIRST AMENDMENT INSTITUTE
AT COLUMBIA UNIVERSITY, New York, New York, for Amici Curiae.
ON SUPPLEMENTAL BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC,
Hemlock, Michigan, for Appellant. Victoria R. Ferres, Todd J. Shoudy, FLETCHER, FEALKO,
SHOUDY & FRANCIS, PC, Port Huron, Michigan, for Appellee. ON AMICUS BRIEF:
Katie Fallow, Stephanie Krent, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA
UNIVERSITY, New York, New York, for Amici Curiae.
*
Judge Ralph B. Guy, Jr., who sat on the original panel in this case, took inactive status on September 30,
2023. Judge Gilman was randomly selected to take his place.
No. 21-2977 Lindke v. Freed Page 2
_________________
OPINION
_________________
THAPAR, Circuit Judge. Kevin Lindke claims that James Freed, the City Manager of
Port Huron, Michigan, violated Lindke’s free-speech rights by blocking him on Facebook and
deleting his Facebook comments. We originally ruled for Freed on state-action grounds, but the
Supreme Court adopted a different test. Because the factual record isn’t developed enough for us
to apply the Supreme Court’s revised test, we remand this case to the district court for further
proceedings.
I.
We spelled out the facts of this dispute in our last opinion, so we’ll provide an
abbreviated version here. See Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacated, 601 U.S.
187 (2024). James Freed was the City Manager of Port Huron, Michigan. He maintained a
public Facebook page where he posted updates about his personal life and job. Kevin Lindke
left comments on these posts that were critical of the city’s handling of the COVID-19 pandemic.
In response, Freed deleted Lindke’s comments and “blocked” Lindke from accessing Freed’s
Facebook page. Lindke sued under 42 U.S.C § 1983, alleging that Freed’s actions violated
Lindke’s First Amendment rights.
We affirmed the district court’s judgment in favor of Freed on the ground that Freed
wasn’t engaged in state action. Id. at 1207. We held that an official’s social-media activity
could count as state action only when the activity (1) is part of an officeholder’s “actual or
apparent duties” or (2) couldn’t happen in the same way without “the authority of the office.” Id.
at 1203 (cleaned up). Applying that test, we concluded that Freed hadn’t engaged in state action
when he blocked Lindke and deleted his comments. Id. at 1204. The Supreme Court then
granted certiorari, articulated a state-action test that was different from ours, and vacated our
judgment to the extent that it was inconsistent with the new test. See Lindke v. Freed, 601 U.S.
187 (2024).
No. 21-2977 Lindke v. Freed Page 3
Back in this court, Lindke filed a motion to remand the case to the district court. He
argues that he should have an opportunity to conduct additional discovery that is tailored to the
Supreme Court’s new test. In response, we ordered supplemental briefing on various questions
related to the Supreme Court’s test and the need to remand.
II.
Under the Supreme Court’s new test, an official’s social-media activity counts as state
action only if the plaintiff can show that the official (1) “possessed actual authority to speak on
the State’s behalf” and (2) “purported to exercise that authority when he spoke on social media.”
Id. at 198. This new test differs from the one we previously applied in two ways: it’s narrower
in one respect and broader in another. At prong one, we previously held that actual or apparent
authority could support a finding of state action. Lindke, 37 F.4th at 1204. But the Supreme
Court made clear that only actual authority could suffice. Lindke, 601 U.S. at 198. And on
prong two, we focused on the appearance and administration of Freed’s page as a whole. Lindke,
37 F.4th at 1203. But the Supreme Court explained that this prong requires a post-by-post
inquiry. Lindke, 601 U.S. at 204. For the reasons we discuss below, a limited remand is
necessary to apply this revised test.
A.
The first step of the state-action inquiry is to determine whether Freed had “actual
authority” to speak on the State’s behalf “on a particular matter.” Id. The Supreme Court
identified three key features Lindke must show to satisfy this element.
First, Freed’s authority to speak for the state must have been actual, not simply apparent.
It doesn’t matter whether Freed acted like he had authority to speak for the government. Nor
does it matter whether others thought that Freed had such authority. That’s because Freed’s
social-media activity cannot be “attributable to the State” unless he was actually “possessed of
state authority” to speak on the state’s behalf. Id. at 198 (citations omitted).
Second, to be state action, Freed’s posts must relate to a specific matter within his
portfolio of responsibilities. Id. at 199. It’s not enough for Lindke to show that Freed had “some
No. 21-2977 Lindke v. Freed Page 4
authority to communicate with residents on behalf of Port Huron.” Id. Rather, Lindke must
show that Freed’s posts pertained to topics “within Freed’s bailiwick.” Id. The Supreme Court’s
hypothetical example is instructive. Imagine that Freed had posted a list of local restaurants with
health-code violations and then deleted negative user comments. Id. Freed would not be
engaging in state action unless responsibility for public health was “within the portfolio of the
city manager.” Id.
Third, the grant of actual authority must come from one of the sources mentioned in 42
U.S.C. § 1983: “statute, ordinance, regulation, custom, or usage.” The first three options are
straightforward: they refer to “written law” that “empower[s] [Freed] to make official
announcements.” Id. at 200. An example might be a city mayor who uses social media to satisfy
a statutory public-notice provision for a budgetary hearing. Or a city press manager whose
statutory responsibilities include issuing official documents.
“Custom” and “usage” are a bit harder to pin down. Those terms refer to “‘persistent
practices of state officials’ that are ‘so permanent and well settled’ that they carry ‘the force of
law.’” Id. (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 168 (1970)). The idea is that a
state may assign job duties to an official through unwritten practices that have become so
entrenched as to carry the force of law.
Freed might have actual authority in the absence of written law if “prior city managers
have purported to speak on [the state’s] behalf and have been recognized to have that authority
for so long that the manager’s power to do so has become ‘permanent and well settled.’” Id.
(quoting Adickes, 398 U.S. at 167–68). For example, imagine that three successive fire marshals
have issued statements designating certain days on which residents are prohibited from outdoor
burning. Even if no written law authorizes the fire marshals to issue these statements, the fact
that they have consistently done so might be evidence that the fire marshal’s office has that
authority via custom and usage. If the next fire marshal issued a burn ban via social media, that
would count as state action.
Municipal-liability caselaw under § 1983 can also help flesh out the meaning of “custom”
and “usage.” An actionable custom must be sufficiently “widespread” to have the force of law.
No. 21-2977 Lindke v. Freed Page 5
See Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997). Employees’
patterns of conduct can establish a custom. See id. at 407–08; City of Canton v. Harris, 489 U.S.
378, 389 (1989). Alternatively, “formal rules or understandings” that “establish fixed plans of
action to be followed under similar circumstances consistently and over time” can create a
custom. Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81 (1986). These municipal-liability
cases shed light on how settled but unwritten practice can give rise to “custom” and “usage”
under § 1983.
What’s more, for a post to constitute state action, an official must have the power to make
statements on the matter over which he has responsibility. It isn’t enough that “making official
announcements could fit within the job description” of an official. Lindke, 601 U.S. at 201.
Rather, issuing official announcements must be “actually part of the job that the State entrusted
the official to do.” Id. In this case, for instance, Freed must have been “possessed of state
authority to post city updates.” Id. at 199 (cleaned up). This makes sense. After all, a social
media post is merely a statement. And a grant of authority to perform job responsibilities
doesn’t necessarily come with authority to make official statements about those responsibilities.1
There is, however, one situation when a grant of authority is accompanied by a power to
issue statements about those duties. If a state grants “broad responsibility” for a major project to
a “high-ranking official,” then this authorization might come with the authority to “make official
announcements on that subject.” Id. at 201. A director of a state transportation department, for
example, would possess authority to issue statements on the state highway system that he
oversees. Id. But the Supreme Court emphasized that this scenario would be the exception, not
the rule. See id. Courts must not rely on “excessively broad job descriptions to conclude that a
government employee is authorized to speak for the State.” Id. (cleaned up). Unlike the
transportation director above, a construction worker employed by the city would not be engaging
in state action if he took to Facebook to post updates about his work. Why? The State didn’t
authorize the worker to make official announcements about his construction duties.
1
Of course, a grant of actual authority to speak on the state’s behalf need not mention social media as the
method of speaking. See id. at 200. Thus, actual authority may exist even if the relevant laws or customs don’t
mention social media.
No. 21-2977 Lindke v. Freed Page 6
B.
If Freed lacked actual authority to speak on the state’s behalf, that’s the end of the
inquiry—there’s no state action. But if Freed did have such authority, then we move to the
second prong: whether Freed purported to exercise that authority when he spoke on social
media. This is an objective test, although the “appearance and function” of the social-media
activity are relevant. Id. at 198. For example, if a government website links to an official’s
social-media posts, it’s likely that such posts exercised state authority.
But not all posts concerning a public official’s job are exercises of state power. After all,
“[s]tate employees do not work for the State every hour of the day.” Mackey v. Rising, 106 F.4th
552, 554 (6th Cir. 2024). Public officials “have the right to speak about public affairs in their
personal capacities.” Lindke, 601 U.S. at 203. So when a state official doesn’t purport to
exercise his actual authority, he speaks in his private capacity rather than as a state actor.
Resolving this second prong requires a post-by-post analysis. Id. at 203–04. Accounts
like Freed’s, which aren’t clearly labeled as either personal or official, may contain some posts
made in a personal capacity and others in an official capacity. Id. at 202. Consequently, Lindke
must identify “specific posts” in which Freed purported to exercise authority to speak on the
state’s behalf. Id. at 203. Moreover, it’s “crucial” that Lindke show that Freed was purporting to
exercise state authority in the specific posts that Lindke identifies. Id. It’s not the district court’s
job to comb through the offending account.
Of course, the posts Lindke identifies must be ones that were the subject of alleged
censorship. Otherwise, Lindke wouldn’t be able to allege a rights violation. Here, Lindke
alleges two categories of posts that were the subject of censorship: (1) posts from which
Lindke’s comments were deleted, and (2) posts that Lindke couldn’t access because he was
“blocked” from Freed’s page.
When it comes to the deletion of comments, the court’s task is straightforward: look at
the allegedly offending posts that Lindke identifies and determine whether any of those posts
represented state action. Id. at 204. For deletion, “the only relevant posts are those from which
Lindke’s comments were removed.” Id.
No. 21-2977 Lindke v. Freed Page 7
But when it comes to Freed’s wholesale “blocking” of Lindke from accessing his page,
Lindke need only identify one single post on Freed’s account that represented state action. Id.
Indeed, “[b]locking” someone on Facebook is a “blunt[] . . . tool.” Id. This means that when an
official blocks someone from accessing a page on which both personal and official business is
conducted, the official risks liability if the blocked user is prevented from commenting on even a
single state-action post—even if the majority of the account’s content is personal. Id.
Context is everything in analyzing this second prong. Whether each post’s “content and
function” invoke personal or official authority is a “fact-specific undertaking.” Id. at 203. The
same substantive message may alternatively qualify as state or private action, depending on the
circumstances. For example, imagine that a school board president announces that the school
board has lifted pandemic-era restrictions on public schools. See id. at 201–02. If the president
delivers that message at a school board meeting, it’s state action. Id. But if he subsequently
shares that message at a backyard barbecue with friends, it’s private action. Id. All told, it’s
unlikely that an official is purporting to exercise the authority of his office when he makes a
statement that merely “relates to” or “concerns information learned during” his public
employment. Id. at 203 (cleaned up). Indeed, an official “might post job-related information for
any number of personal reasons,” such as a “desire to raise public awareness.” Id.
To be sure, public officials can reduce ambiguity about whether their social-media posts
are public or private. Officials may choose to display a disclaimer on their account, explaining
that that their page is personal or that the account’s posts contain only personal views. Id. at 202.
Such a label would entitle the official to a “heavy” presumption that “all of the posts on his page
were personal.” Id. That presumption could only be rebutted through the most obvious
exercises of state action: that is, conduct that only a state actor would be capable of doing, such
as performing notice-and-comment rulemaking on a social-media platform. Id. at 203 & n.2.
And, to the extent this presumption can be overcome, it would be on a post-by-post basis: one
official-action post wouldn’t invalidate the disclaimer’s presumption for all other posts on a
page.
By contrast, posts from an account that clearly belongs to the government—like a page
labeled “City of Port Huron”—presumptively speak for the government. Id. at 202. Officials
No. 21-2977 Lindke v. Freed Page 8
may only access those pages by virtue of their state office, so it’s obvious that posts from such
accounts will almost always be state action.
But when an account neither has a disclaimer nor belongs to the government, the lines are
not as bright. Discerning whether a post exercises state authority will be a context-specific,
totality-of-the-circumstances inquiry. But a few factors can guide courts undertaking this task.
For instance, posts that expressly invoke an official’s legal authority will likely be exercises of
that authority. As will posts that have some legal consequence in the real world, like a “burn
ban” issued on social media by our hypothetical fire marshal. Likewise, if a government official
uses their staff or office funding to make a post, it’s more likely the post is made pursuant to
state authority.
On the flip side, the mere subject matter of a post isn’t enough to show that a post is state
action—especially when the information contained in the post is available in other places
(whether online or in-person). After all, any citizen can post about a school policy, road closure,
or press conference. None of that requires authorization by state law. Indeed, when a state
official posts about government happenings in a way that any other citizen could, plaintiffs will
need to show that those posts were made pursuant to the official’s job duties. Mackey, 106 F.4th
at 561 (explaining that even if a State authorizes an official to engage in certain conduct, the
conduct “will not qualify as state action” if the State “has permitted anyone to engage in the
activity”).
III.
Because the Supreme Court’s test changes the relevant inquiries, Lindke argues that he
needs to further develop the record before a court can resolve his claims. We agree. The
discovery he conducted couldn’t have been tailored toward satisfying a legal standard that had
eluded all the parties as well as this court. Thus, we remand this case to the district court for
further proceedings. We now turn to consider what the remand might look like.
As an initial matter, the district court should determine whether Lindke’s claim for
declaratory and injunctive relief is moot. Freed’s summary-judgment motion asserted that it
was. As of 2021, Freed represented that his Facebook page had been deactivated for almost a
No. 21-2977 Lindke v. Freed Page 9
year. He also testified that he wouldn’t reinstate the page without assurances that he could
operate it in his personal capacity. Of course, “a defendant’s voluntary cessation of a challenged
practice does not deprive a federal court of its power to determine the legality of the practice.”
Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC) Inc., 528 U.S. 167, 189 (2000) (citation
omitted). Because Freed’s claim for mootness rests on his own voluntary decision to deactivate
his Facebook page, he bears a “heavy burden of persuading” the court that the challenged
conduct “cannot reasonably be expected to start up again.” Id. (cleaned up). So, if the relevant
facts are unchanged from three years ago, Lindke’s claim for forward-looking relief likely isn’t
moot. But it’s possible that the facts have changed in some way that would allow Freed to meet
his burden of establishing mootness. We leave it to the district court to determine whether any
such facts have emerged.2
Additionally, Freed sought summary judgment on several grounds unrelated to the state-
action question. The district court had no occasion to pass on these theories the first time around
because it granted Freed’s motion on state-action grounds. Lindke v. Freed, 563 F. Supp. 3d
704, 708 (E.D. Mich. 2021). But on remand, the district court should rule on these alternative
theories before opening the door to additional discovery.
If the district court ultimately tackles the state-action question, it must give Lindke an
opportunity to establish facts that became legally relevant only after the Supreme Court
articulated its test. But the district court doesn’t need to re-open discovery for issues on which
Lindke already had a chance to develop the record the first time around.
Start with the first prong of the state-action test, which asks whether Freed had authority
to speak for the state on the matters in question. Lindke, 601 U.S. at 198–200. Our prior test
asked a different question: whether Freed had authority to run a Facebook page. Lindke, 37
F.4th at 1203. So, the relevant object of authority has changed from authority to run a Facebook
page to authority to speak for the state. As explained above, this authority can come from
2
The fact that Lindke has a live claim for damages doesn’t tell us anything about whether his claim for
injunctive relief is moot. A plaintiff must demonstrate a live controversy “separately for each form of relief sought.”
Friends of the Earth, 528 U.S. at 185; see also Uzuegbunam v. Preczewski, 592 U.S. 279, 284 (2021) (observing
that claim for injunctive relief was moot even though claim for nominal damages remained live).
No. 21-2977 Lindke v. Freed Page 10
written law, custom, or usage. And permissible sources of custom could range from use of social
media by Freed’s predecessors to any other patterns established by Port Huron. If the district
court determines that Lindke hasn’t had an opportunity to show that these sources granted Freed
authority to speak on the state’s behalf, then discovery on this issue would be warranted.
If Freed lacked actual authority to speak for the state, then there’s no state action, and
Freed is entitled to summary judgment. The district court would proceed to prong two only if
Freed had actual authority. This prong asks whether Freed purported to exercise that authority in
specific posts. Lindke, 601 U.S. at 203. To be sure, Lindke has already discovered a trove of
Freed’s Facebook posts. But on this prong, context is everything, so a fact-intensive analysis of
individual posts might be necessary. Id. Lindke might need additional discovery to develop
facts that could be important to understanding the context of Freed’s posts.
Lastly, even if discovery uncovers that some of Freed’s posts were state action, a host of
other First Amendment issues remain: what kind of forum Freed’s social-media accounts are,
what level of scrutiny his deletion or block decisions receive, and whether he’s entitled to
qualified immunity. We leave these interesting questions for another day.
* * *
We remand this case to the district court for further proceedings.