Petition for Writ of Certiorari — Kevin Lindke, Petitioner v. James R. Freed

Supreme Court briefDec 29, 2022

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Text

No.

In the Supreme Court of the United States

KEVIN LINDKE,

PETITIONER

JAMES R. FREED

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PHILIP L. ELLISON

OUTSIDE LEGAL

COUNSEL PLC

P.O. Box 107

Hemlock, MI 48626

(989) 642-0055

ALLON KEDEM

Counsel of Record

DANA OR

CHARLES BIRKEL

JILLIAN M. WILLIAMS

ARNOLD & PORTER

KAYE SCHOLER LLP

601 Massachusetts Ave., NW

Washington, DC 20001

(202) 942-5000

allon.kedem@arnoldporter.com

QUESTION PRESENTED

Courts have increasingly been called upon to

determine whether a public official who selectively blocks

access to his or her social media account has engaged in

state action subject to constitutional scrutiny. To answer

that question, most circuits consider a broad range of

factors, including the account’s appearance and purpose.

But in the decision below, the court of appeals rejected the

relevance of any consideration other than whether the

official was performing a “duty of his office” or invoking

the “authority of his office.” App. 5a.

The question presented is:

Whether a public official’s social media activity can

constitute state action only if the official used the account

to perform a governmental duty or under the authority of

his or her office.

(i)

RELATED PROCEEDINGS

United States District Court (E.D. Mich.):

Lindke v. Freed, No. 2:20-cv-10872 (Sep. 27, 2021)

United States Court of Appeals (6th Cir.):

Lindke v. Freed, No. 21-2977 (affirming, June 27,

2022; denying rehearing en banc, Aug. 5, 2022)

(ii)

TABLE OF CONTENTS

Page

Opinions Below ..................................................................... 1

Jurisdiction ........................................................................... 1

Statutory Provision Involved .............................................. 1

Introduction .......................................................................... 2

Statement of the Case.......................................................... 2

Reasons for Granting the Petition ...................................... 8

I. The Circuits Are Split on When a Public

Official’s Social Media Activity Constitutes

State Action ................................................................... 8

A. Four Courts of Appeals Consider the

Totality of the Circumstances, Including a

Social Media Account’s Appearance and

Purpose ................................................................... 9

B. The Sixth Circuit Stands Alone in Applying

a Duty-or-Authority Test ................................... 14

II. This Case Is an Ideal Vehicle for Reviewing

This Important Question ........................................... 16

III. The Decision Below is Wrong ................................... 19

Conclusion ........................................................................... 23

APPENDIX A:

Sixth Circuit Court of Appeals

decision (June 27, 2022) ................. 1a

APPENDIX B:

District court opinion and order

granting summary judgment for

defendant (Sept. 27, 2021) ........... 13a

APPENDIX C:

Sixth Circuit Court of Appeals

order denying rehearing en banc

(Aug. 5, 2022) ................................ 30a

(iii)

TABLE OF AUTHORITIES

Cases

Page(s)

Biden v. Knight First Amend. Inst.,

141 S. Ct. 1220 (2021) ......................................... 7, 12, 18

Brentwood Acad. v. Tenn. Secondary Sch. Athletic

Ass’n,

531 U.S. 288 (2001) ............................................. 2, 20, 22

Campbell v. Reisch,

986 F.3d 822 (8th Cir. 2021) .................................... 7, 12

Davison v. Randall,

912 F.3d 666 (4th Cir. 2019) .................... 7, 9, 10, 11, 21

Evans v. United States,

504 U.S. 255 (1992) ....................................................... 21

Garnier v. O’Connor-Ratcliff,

41 F.4th 1158 (9th Cir.), pet. for cert. pending,

No. 22-324 (filed Oct. 4, 2022)

..................................... 12, 13, 15, 16, 17, 18, 19, 21, 22

Griffin v. Maryland,

378 U.S. 130 (1964) ............................................. 8, 20, 21

Jackson v. Metro. Edison Co.,

419 U.S. 345 (1974) ................................................... 8, 20

Knight First Amend. Inst. v. Trump,

928 F.3d 226 (2d Cir. 2019) ...................................... 7, 11

Knight First Amend. Inst. v. Trump,

953 F.3d 216 (2d Cir. 2020) .................................... 12, 16

Lugar v. Edmonson Oil Co.,

457 U.S. 922 (1982) ......................................................... 8

Cases—Continued

Page(s)

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ................................................... 16

Polk County v. Dodson,

454 U.S. 312 (1981) ....................................................... 22

Uzuegbunam v. Preczewski,

141 S. Ct. 792 (2021) ..................................................... 18

West v. Atkins,

487 U.S. 42 (1988) ..................................................... 8, 20

Statutes and Regulations

42 U.S.C. § 1983 ................................................................ 6, 8

Ku Klux Klan Act of 1871, 42 Cong., ch. 22,

17 Stat. 13 ...................................................................... 21

Rules

6th Cir. R. 28(a) .................................................................... 3

Legislative Materials

Cong. Globe, 42d Cong., 1st Sess. 320 (1871) .................. 21

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-12a) is

published at 37 F.4th 1199. The court’s order denying

rehearing en banc (App. 30a) is available at 2022 WL

3221937. The district court’s opinion and order granting

respondent James Freed’s motion for summary judgment

(App. 13a-29a) is published at 563 F. Supp. 3d 704.

JURISDICTION

The court of appeals entered judgment on June 27,

2022, App. 1a, and denied a timely petition for rehearing

on August 5, 2022, App. 30a. On October 7, 2022, Justice

Kavanaugh extended the time to file a petition for a writ

of certiorari to and including January 2, 2023. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISION INVOLVED

Section 1983 of Title 42, United States Code, provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress,

except that in any action brought against a judicial

officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable. For the purposes

of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be

considered to be a statute of the District of Columbia.

(1)

INTRODUCTION

Like the petition for a writ of certiorari in O’ConnorRatcliff v. Garnier, No. 22-324 (filed Oct. 4, 2022), this case

concerns the standard for determining whether a public

official’s social media use constitutes state action. Social

media platforms like Facebook and Twitter have become

ubiquitous. At the same time, “lawsuits against public

officials for blocking social media users on nongovernmental accounts have proliferated.” Pet. at 28,

Trump v. Knight First Amend. Inst., No. 20-197 (Aug. 20,

2020). In resolving these cases, the courts of appeals have

divided into two opposing camps. Heeding this Court’s

admonition that “a host of facts” are relevant to the stateaction inquiry, Brentwood Acad. v. Tenn. Secondary Sch.

Athletic Ass’n, 531 U.S. 288, 296 (2001), most courts of

appeals examine the totality of the circumstances. But in

the decision below, the Sixth Circuit “part[ed] ways with

[those] other circuits’ approach,” App. 12a, instead

adopting a test that reduces the state-action inquiry to

only two factors: whether the official was performing a

“duty of his office” or invoking the “authority of his office,”

App. 5a. The Court should resolve this circuit conflict now,

and this is the right case for doing so.

STATEMENT OF THE CASE

1. Respondent James Freed became the City

Manager of Port Huron, Michigan, in 2014. App. 14a.

Appointed by the Mayor and City Council, the Manager

serves as the City’s chief administrative officer. In this

role, Freed assists the Mayor and Council by carrying out

their policy vision; advising the City Council on finances

and budget; coordinating the work of department heads

and other employees; and ensuring that all residents are

equitably served. C.A. Rec. 1463.*

Like many public officials, Freed has connected with

his constituents through Facebook, a social media

platform that allows users to post content and engage

with others online. As relevant here, Facebook offers two

different products for content-sharing: “Profiles” are

personal accounts designed for individuals to create and

share content with their “friends”—i.e., family, friends,

and other chosen audience members. App. 2a. Facebook

profiles are limited to 5,000 friends. Ibid. “Pages” allow

public figures, artists, businesses, brands, organizations,

and the like to communicate with their constituents or

customers. C.A. Rec. 1152. Unlike profiles, Facebook

pages are publicly accessible by design and cannot be

made private by the user. App. 2a.

Freed originally maintained a Facebook profile. But

when he hit the 5,000-friend limit, Freed converted his

profile to a Facebook page that could be “followed” by any

member of the public. Ibid. Freed’s page classified him as

a “public figure,” ibid., and his profile featured a picture

of him wearing his city-manager pin, C.A. Rec. 1154; see

App. 11a. In the section of his page identifying the page

owner’s contact information, Freed listed:

• www.porthuron.org as the page’s website;

• CommunityComments@PortHuron.org as its email

address; and

• City Hall as the associated physical address.

App. 2a.

Citations to “C.A. Rec.” refer to the Sixth Circuit “Page ID #.”

See 6th Cir. R. 28(a).

Freed’s Facebook Page

Fig. 1

Freed frequently used the page to post information

about City programs, policies, and development

initiatives. Examples include posts about the opening of a

new city playground, fishing docks, and basketball courts,

and the establishment of the Port Huron Office of

Diversity, Equity & Inclusion. See App. 14a-15a;

C.A. Rec. 1198. In these posts, Freed often used the words

“we” and “us” to describe actions taken by the City. See,

e.g., C.A. Rec. 1154. Freed also shared personal posts on

the page, including pictures of his family and dog, various

home-improvement projects, and passages of scripture.

See, e.g., App. 14a.

2. In March 2020, Freed began posting information

about the COVID-19 pandemic, including county health

data, social distancing recommendations, and updates on

the City and State’s public health responses. Among other

things, Freed shared data and media releases from the

county health department, App. 15a; C.A. Rec. 734; and

press releases from his office summarizing Port Huron’s

use of federal grants to provide financial relief to

residents, App. 15a; C.A. Rec. 1178. Freed also informed

constituents of his own initiatives to reduce City staff and

freeze hiring during the pandemic, C.A. Rec. 1163; posted

photos of himself, the Mayor, and others social distancing,

id. at 1165; and provided his own recommendations and

thoughts on social distancing in town, see, e.g., id. at 743;

see also id. at 1166 (posting photos of county health

officials, including “St Clair County’s version of Dr

Anthony Fauci”).

Petitioner Kevin Lindke is a resident of Port Huron.

Id. at 2. In March 2020, Lindke commented on Freed’s

Facebook page several times from three different

Facebook profiles. App. 15a. Two of Lindke’s comments

criticized Port Huron’s response to the COVID-19

pandemic. App. 15a-16a. On a photo that Freed had posted

of the Mayor ordering takeout at a local establishment,

Lindke commented that while City “residents [were]

suffering,” its leaders were eating at a “pricey” restaurant

“instead of talking out to the community in th[e] . . .

unprecedented time of the pandemic.” Ibid. In another

post, Lindke commented that Port Huron “deserves

better.” Ibid.

Freed responded by blocking each of Lindke’s

accounts, thereby denying Lindke access to his page.

App. 15a. Freed also deleted Lindke’s comments from his

page. Ibid. Like Lindke, four other individuals had their

comments deleted or their accounts blocked by Freed. See

App. 16a.

Lindke filed suit under 42 U.S.C. § 1983, alleging that

Freed had violated the First Amendment by deleting his

comments and blocking his accounts. The district court

granted summary judgment for Freed, concluding that

his Facebook activity was not state action and therefore

was immune from First Amendment scrutiny. App. 21a29a.

3. The Sixth Circuit affirmed. App. 1a-12a. Because

Lindke had filed suit under Section 1983, the court

explained, he would have to show that his federal rights

were violated by someone acting “under color of any

statute, ordinance, regulation, custom, or usage, of any

State.” App. 3a (quoting 42 U.S.C. § 1983). In other words,

Lindke would have to show that Freed was “engaged in

state action” when he deleted Lindke’s posts and blocked

Lindke from accessing his Facebook page. App. 3a.

Whether a public official is engaged in state action,

the Sixth Circuit explained, depends on whether the

official is “performing an actual or apparent duty of his

office, or . . . could not have behaved as he did without the

authority of his office.” App. 5a (quotation marks

omitted). And in the court’s view, that will be the case if—

but only if—the official’s actions “are controlled by the

government or entwined with its policies.” Ibid. The court

thus adopted what it called a “duty-or-authority test,”

under which a public official’s social media activity is

subject to constitutional scrutiny “only” where the

activity was conducted in furtherance of governmental

“duties” or invoked “state authority.” App. 8a. “It’s only

then,” the court concluded, “that his social-media activity

is fairly attributable to the state.” Ibid. (quotation marks

omitted).

In adopting this test, the Sixth Circuit expressly

“part[ed] ways with other circuits’ approach to state

action.” App. 12a. Those other circuits have considered a

broader range of factors, including “a social-media page’s

purpose and appearance,” such as where the public

official’s conduct conveys the “impression that the page

operated under the state’s imprimatur.” App. 10a-11a

(citing Knight First Amend. Inst. v. Trump, 928 F.3d 226,

234-36 (2d Cir. 2019), vacated as moot sub nom. Biden v.

Knight First Amend. Inst., 141 S. Ct. 1220 (2021);

Davison v. Randall, 912 F.3d 666, 680-81 (4th Cir. 2019);

Campbell v. Reisch, 986 F.3d 822, 826-27 (8th Cir. 2021)).

In the Sixth Circuit’s view, concern for the appearance of

authority may be appropriate “in assessing when police

officers are engaged in state action,” but it rejected as

“shallow” the analogy to the social media context.

App. 11a. The court thus reaffirmed that its state-action

inquiry in that context would instead focus solely “on the

actor’s official duties and use of government resources or

state employees.” App. 12a.

Applying its duty-or-authority test to Freed’s

conduct, the Sixth Circuit determined that Freed had not

engaged in state action when he blocked Lindke’s

accounts and deleted Lindke’s posts. On the duty prong,

the Sixth Circuit explained that “no state law, ordinance,

or regulation compelled Freed to operate his Facebook

page.” App. 8a; see ibid. (“[I]t wasn’t designated by law as

one of the actual or apparent duties of his office.”)

(emphasis added). And on the authority prong, the court

explained, the page “did not belong to the office of city

manager,” nor did “Freed rely on government employees

to maintain” it. App. 9a-10a. Since Freed’s Facebook

activity did not cross either of these “bright lines,” the

court concluded, “he was acting in his personal capacity—

and there was no state action.” App. 12a.

REASONS FOR GRANTING THE PETITION

The decision below creates a conflict with the

approach of other courts of appeals to determining

whether a public official’s use of social media constitutes

state action. This important question has arisen, and will

continue to arise, with increasing frequency in the lower

courts—and in this one. See O’Connor-Ratcliff v. Garnier,

No. 22-324 (filed Oct. 4, 2022). The Sixth Circuit’s test is

irreconcilable with this Court’s precedents and

misconstrues the scope of Section 1983, the preeminent

legal vehicle for holding public officials responsible for

constitutional violations. This case presents a prototypical

scenario in which the state-action question arises; was

resolved solely on that basis; and involves no impediments

to addressing the issue. The Court should grant the petition.

THE CIRCUITS ARE SPLIT ON WHEN A PUBLIC OFFICIAL’S

SOCIAL MEDIA ACTIVITY CONSTITUTES STATE ACTION

Section 1983 provides a cause of action for violations

of rights secured by the Constitution or laws of the United

States committed by any person acting “under color of ”

state law. 42 U.S.C. § 1983. As this Court has recognized,

“state employment is generally sufficient to render the

defendant a state actor.” Lugar v. Edmonson Oil Co., 457

U.S. 922, 935 n.18 (1982). “If an individual is possessed of

state authority and purports to act under that authority,”

therefore, “his action is state action.” West v. Atkins, 487

U.S. 42, 56 n.15 (1988) (quoting Griffin v. Maryland, 378

U.S. 130, 135 (1964)).

A public official may nevertheless claim that he or she

engaged in the challenged conduct solely in a private—

rather than public—capacity. In that context, this Court

has asked “whether there is a sufficiently close nexus

between the State and the challenged action . . . so that the

action of the latter may be fairly treated as that of the

State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345,

351 (1974).

Where disputes involve a public official’s use of social

media—and, in particular, the official’s decision to block

the plaintiff ’s access to an account or delete content

posted by the plaintiff—the courts of appeals have

developed two vastly different approaches. Most courts

have engaged in a totality-of-the-circumstances inquiry

involving multiple factors, including whether the

appearance or purpose of the social media account makes

it fair to treat the official’s use of the account as state

action. But in the decision below, the Sixth Circuit

“part[ed] ways with [those] other circuits’ approach.”

App. 12a. The Sixth Circuit rejected the relevance of a

social media account’s appearance or purpose, instead

relying solely on two factors: “the actor’s official duties

and use of government resources or state employees.”

Ibid.

Four Courts of Appeals Consider the Totality

of the Circumstances, Including a Social

Media Account’s Appearance and Purpose

1. The Fourth Circuit was the first court of appeals to

hold that a public official can act under color of state law

when she blocks a constituent from her social media

account. In Davison v. Randall, 912 F.3d 666 (4th Cir.

2019), the Chair of the county Board of Supervisors

(Randall) created a Facebook page before she was sworn

into office and then used it to communicate with

constituents (as well as to post about “topics less closely

related to her official activities such as her affection for

the German language or pride in becoming an organ

donor”). Id. at 673-74. When an “outspoken” county

resident posted a negative comment about a town hall

meeting, Randall deleted the post and temporarily

blocked the resident’s access to the page. Id. at 675-76.

In deciding whether “Randall acted under color of

state law,” the court stressed that “[t]here is no specific

formula for determining whether state action is present,”

and that the relevant “criteria lack rigid simplicity.” Id. at

679-80 (quotation marks omitted). The court accordingly

deemed it necessary to consider “the totality of the

circumstances surrounding Randall’s creation and

administration” of the Facebook page, mindful that “no

one factor is determinative.” Id. at 680. Among other

things, the court noted, state action is “more likely” to be

involved “[w]hen a defendant’s status as a public official

enabled her to execute a challenged action in a manner

that private citizens never could have,” or when the

challenged action “occurs in the course of performing an

actual or apparent duty of his office.” Ibid. (cleaned up).

But the Fourth Circuit also considered additional

factors, including two of particular note here. First, the

court took into account the page’s appearance—i.e.,

whether Randall had “clothed the Chair’s Facebook Page

in the power and prestige of her state office.” Id. at 681

(cleaned up). Second, the court looked at the page’s

purpose—i.e., whether Randall had used the page “as a

tool of governance.” Id. at 680 (citation omitted).

The Fourth Circuit determined that both factors

pointed to state action on the facts of the case. Randall had

“clothed the page in the trappings of her public office,” by

listing her official title in the page’s heading; listing her

official contact information; providing links to the official

county website; and posting about official activities in

posts directed to her constituents. Id. at 680-83. Randall

had also used the page “as a tool of governance,” including

“to inform the public about serious public safety events

and to keep her constituents abreast of the County’s”

activities. Id. at 680 (quotation marks omitted).

Based on those considerations and others, see id. at

680-81, the Fourth Circuit ultimately determined that

“the totality of the circumstances surrounding Randall’s

creation and administration of the Chair’s Facebook Page

and banning of Davison from that page” supported the

conclusion “that Randall acted under color of state law.”

Id. at 680.

2. Following Davison, other circuits have embraced

its totality-of-the-circumstances approach to state action,

including consideration of a social media account’s

appearance and purpose.

The Second Circuit applied that approach in Knight

First Amendment Institute v. Trump, 928 F.3d 226 (2d

Cir. 2019). In that case, then-President Donald Trump

blocked certain users from the Twitter account that he

had created and started using before holding office. Id. at

231-32. Like the Fourth Circuit in Davison, the Second

Circuit emphasized that determining state action in the

context of social media use is a “fact-specific inquiry” that

requires consideration of multiple “factors,” including:

“how the official describes and uses the account; to whom

features of the account are made available; and how

others, including government officials and agencies,

regard and treat the account.” Id. at 236.

Also like the Fourth Circuit, the Knight court

considered the social media account’s appearance and

purpose. Regarding the account’s appearance, the Second

Circuit explained that the account was “presented by the

President and the White House staff as belonging to, and

operated by, the President.” Id. at 235. And regarding its

purpose, the court explained that “since becoming

President[,] he has used the Account on almost a daily

basis as a channel for communicating and interacting with

the public about his administration.” Ibid. (quotation

marks omitted). Based on those considerations and

others, see id. at 235-36, the court concluded that “the

factors pointing to the public, non-private nature of the

Account and its interactive features are overwhelming.”

Id. at 236.

Following the Second Circuit’s decision, Judge Park

(joined by Judge Sullivan) dissented from the denial of

rehearing en banc. Knight First Amend. Inst. v. Trump,

953 F.3d 216, 226-31 (2d Cir. 2020). Rather than consider

the totality of the circumstances—including the Twitter

account’s appearance and purpose—Judge Park would

have narrowed the inquiry to asking whether President

Trump had exercised “special powers possessed by virtue

of law when blocking users” and whether his actions were

“made possible only because he was clothed with the

authority of law.” Id. at 227 (cleaned up). Because

President Trump “could block users from that account

before assuming office,” Judge Park argued, he “was not

a state actor when he blocked users from his personal

account.” Ibid. This Court later vacated the Second

Circuit’s opinion as moot after President Trump left

office. See Biden v. Knight First Amend. Inst., 141 S. Ct.

1220 (2021).

3. The Eighth Circuit applied a similar approach in

Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021). There, a

state representative (Reisch) had created a Twitter

account upon announcing her candidacy and then, once in

office, used it to promote her reelection. Id. at 823-24.

Without definitively resolving the appropriate standard,

see id. at 825, the court held that Reisch’s Twitter use did

not qualify as state action. Even after her election, the

court explained, Reisch “used [Twitter] overwhelmingly

for campaign purposes,” such that “her post-election use

of the account” was quite “similar to her pre-election use.”

Id. at 826. And the “trappings” of the account—which

included a stray reference to her district and her role as

its representative—were far too “equivocal” to support a

contrary conclusion. Id. at 827 (quotation marks omitted).

4. Most recently, the Ninth Circuit adopted a totalityof-the-circumstances approach in Garnier v. O’ConnorRatcliff, 41 F.4th 1158 (9th Cir.), pet. for cert. pending,

No. 22-324 (filed Oct. 4, 2022). There, members of a school

district’s board of trustees had “created public Facebook

and Twitter pages to promote their campaigns for office”

and, after they were elected, used them “to inform

constituents about goings-on” and to “solicit input” from

and “communicate with parents.” Id. at 1163. Two parents

of children in the school district repeatedly posted critical

comments on the trustees’ pages; the trustees responded

by deleting or hiding the parents’ comments and

eventually blocking them entirely. Ibid.

In determining whether the trustees’ social media

activity counted as state action, the Ninth Circuit agreed

with other courts of appeals that the inquiry “is a process

of sifting facts and weighing circumstances,” where “[n]o

one fact can function as a necessary condition across the

board.” Id. at 1169 (quotation marks omitted). The court

accordingly considered a wide variety of factors, including

that the trustees had “purported to act in the

performance of their official duties” and that the trustees’

activity “related in [a] meaningful way to their

governmental status.” Id. at 1171 (cleaned up).

Like other courts of appeals, moreover, the Ninth

Circuit also took into consideration the “appearance” of

the trustees’ social media accounts and the “function” to

which they had been put. Id. at 1169-70. Quoting the

Second Circuit’s decision in Knight, the Ninth Circuit

explained:

[C]ourts should look to considerations such as “how

the official describes and uses the account,” “to whom

features of the account are made available,” and how

members of the public and government officials

“regard and treat the account.”

Id. at 1173 (quoting Knight, 928 F.3d at 236). Based on

these factors—and “all these attributes of the Trustees’

social media pages”—the Ninth Circuit determined that

the trustees had engaged in state action. Ibid.

B. The Sixth Circuit Stands Alone in Applying a

Duty-or-Authority Test

In the decision below, the Sixth Circuit expressly

“part[ed] ways with other circuits’ approach to state

action” in the context of a public official’s social media

activity. App. 12a. Instead of looking at the totality of

circumstances—as every other circuit does—the Sixth

Circuit opted to “focus” only on two considerations: “the

actor’s official duties” and his or her use of “government

resources or state employees.” Ibid. The Sixth Circuit

also specifically disclaimed the need to “examin[e] a

page’s appearance or purpose.” Ibid.; see App. 10a

(rejecting “approach” that “several other courts have

used” that takes into account “a social-media page’s

purpose and appearance”).

In applying its duty-or-authority test, moreover, the

Sixth Circuit took a narrow view of both criteria. On the

duty side of the test, the Sixth Circuit explained that social

media activity qualifies “when the text of state law

requires an officeholder to maintain a social media

account.” App. 6a. As an example, the court hypothesized

a law “directing the chief [of ] police to operate” a

Facebook page. Ibid. In that scenario, “[m]aintaining that

page would . . . be one of the police chief ’s actual duties.”

Ibid.

Social media activity qualifies as the “use of state

authority” if a “public official can operate the account

only because of his state authority.” Ibid. (emphasis

added) That is true, for instance, where the account

“belong[s] to an office, rather than an individual

officeholder,” ibid., or where a public official “direct[s]”

his or her subordinates “to operate her Facebook page,”

thus “mak[ing] it one of the employees’ job

responsibilities.” App. 8a. But the plaintiff must show that

the public official was able to engage in the challenged

social media activity “only . . . because she holds the

authority of her office.” Ibid.

The Sixth Circuit then applied this stringent test to

Freed’s page, holding that his activity on it did not

constitute state action. The court relied on the fact that

“no state law, ordinance, or regulation compelled Freed to

operate his Facebook page,” App. 8a; that the page “did

not belong to the office of city manager,” App. 9a; and that

Freed did not “rely on government employees to

maintain” it, App. 10a. In sum, the court concluded,

Freed’s “page neither derives from the duties of his office

nor depends on his state authority.” App. 8a. The court

thus ascribed no weight to any other consideration, such

as the page’s “presentation” (including the fact that the

page listed the City’s email address, website, and physical

address), App. 11a, or Freed’s use of the page to

“communicat[e] with constituents,” App. 9a.

Also of note, the Sixth Circuit discussed—but

rejected—Lindke’s attempt to rely on “factors”

commonly used “in assessing when police officers are

engaged in state action.” App. 11a. The Sixth Circuit

dismissed that analogy as “shallow.” Ibid. Whereas a

police officer’s “appearance actually evokes state

authority,” the court opined, a public official like Freed

“gains no authority by presenting himself as a city

manager on Facebook.” App. 11a-12a.

In Garnier, by contrast, the Ninth Circuit pointedly

“decline[d] to follow the Sixth Circuit’s reasoning.” 41

F.4th at 1177. “Although the uniform of a police officer

carries particular authority,” the Ninth Circuit explained,

that is merely a matter of degree; asking whether a

governmental officer has “self-identified as a state

employee and generally purported to be a state officer at

the time of the alleged violation” can be equally “instructive

[in an] analysis of other state employees’ conduct.” Ibid.

(cleaned up). Indeed, the Ninth Circuit concluded that

“the line of precedent most similar” to cases like this one

“concerns whether off-duty governmental employees are

acting under color of state law.” Id. at 1170 (emphasis

added). It accordingly chose instead to “follow the mode

of analysis of the Second, Fourth, and Eighth Circuits,”

not that of the Sixth Circuit. Id. at 1177.

II.

THIS CASE IS AN IDEAL VEHICLE FOR REVIEWING THIS

IMPORTANT QUESTION

The standard for determining whether a public

official’s use of social media constitutes state action is an

issue of substantial legal and practical significance, and

this case is perfectly suited for addressing it.

A. As this Court has noted, social media is “perhaps

the most powerful mechanism[ ] available to private

citizens to make [their] voice[s] heard.” Packingham v.

North Carolina, 137 S. Ct. 1730, 1737 (2017). Politicians

and public officials have increasingly begun “us[ing]

personal accounts to promote their official activities,”

Knight, 953 F.3d at 230 (Park, J., dissenting), a trend that

is likely only to accelerate. Public officials and courts need

clarity regarding how to determine whether a public

official’s social media use constitutes state action. See Pet.

Reply at 1, Trump v. Knight First Amend. Inst., No. 20197 (Oct. 6, 2020) (“[T]he issues presented here are

proliferating in cases around the country.”).

B. This case is ideally postured for the Court to

address the correct test for determining whether a public

official’s conduct on social media constitutes state action.

Not only was the issue raised and passed upon below, it

was the sole issue on which the court of appeals’ judgment

rested. App. 12a. There is accordingly no question that the

state-action dispute was outcome-determinative, nor any

impediment to this Court’s ability to decide it.

In addition, the decision below created the circuit

split, and it takes by far the most restrictive view of state

action of any court of appeals to address the issue. As a

result, review in this case would give this Court’s ruling

maximal effect: Either the Court will affirm the Sixth

Circuit’s highly restrictive position that the only relevant

factors are authority or duty, thereby overturning the law

in four other circuits; or else the Court will hold that other

factors must also be considered, necessitating reversal of

the decision below.

C. The same issue is currently pending before the

Court in O’Connor-Ratcliff v. Garnier, No. 22-324 (filed

Oct. 4, 2022). For several reasons, this case is a better

vehicle than that one.

1. Before addressing the state-action question in

O’Connor-Ratcliff, the Court would first have to

determine whether that case is moot. The plaintiffs there

originally sought damages as well as declaratory and

injunctive relief. 41 F.4th at 1166. But the Ninth Circuit

determined that, although the defendant state officials

had violated the First Amendment, they were

nevertheless entitled to qualified immunity, id. at 1183-84;

and the plaintiffs have not sought review of that

determination.

As a result, the dispute in O’Connor-Ratcliff continues

to present a live controversy only insofar as the Ninth

Circuit’s constitutional ruling will affect the defendant

state officials’ social media use prospectively. But the

defendants have already altered their social media use in

light of the litigation, including by using restrictive word

filters on their Facebook pages to effectively eliminate the

ability of the public to offer comments other than

emoticons. See id. at 1167-69 (discussing defendants’

mootness argument based on their use of word filters);

see also Defs.’ C.A. Br. at 38, 2021 WL 3239213 (9th Cir.

July 23, 2021). (“Defendants discovered these tools and

accomplished their original purpose of creating bulletin

boards by using word filters extensively to block all

comments.”). In opposing certiorari, the O’ConnorRatcliff plaintiffs assert that they have “never challenged

the use of word filters,” and that the dispute accordingly

“does not have a present-day effect on the [defendants’]

primary conduct,” although they do not go so far as to

argue that the case is moot. Br. in Opp. at 21, O’ConnorRatcliff v. Garnier, No. 22-324 (Dec. 13, 2022).

In order for the declaratory and injunctive relief

granted in O’Connor-Ratcliff to have continuing effect,

moreover, the defendants there would need to remain

governmental officials—and hence subject to the Ninth

Circuit’s ruling on the First Amendment obligations of

state officials. Should the defendants leave office at any

point before this Court has an opportunity to decide the

case, a serious question of mootness would arise. See

Biden v. Knight First Amend. Inst., 141 S. Ct. 1220 (2021)

(vacating as “moot” the Second Circuit’s decision, which

involved only declaratory relief, after President Trump

left office).

In this case, by contrast, Lindke has sought “nominal,

actual, and punitive damages” in addition to declaratory

and injunctive relief. App. 18a. Lindke’s ongoing request

for damages means that a live controversy will persist

regardless whether Freed leaves office before this

litigation is resolved. See Uzuegbunam v. Preczewski, 141

S. Ct. 792, 796 (2021).

2. Certain features of O’Connor-Ratcliff also make it

atypical of litigation in this area. The defendant state

officials in that case blocked the plaintiffs’ access to their

social media accounts only after the plaintiffs had started

making “quite lengthy” and “frequently repetitive” posts

to the accounts:

For instance, Christopher Garnier posted nearly

identical comments on 42 separate posts O’ConnorRatcliff made to her Facebook page. On one occasion,

within approximately ten minutes Christopher

Garnier posted 226 identical replies to O’ConnorRatcliff's Twitter page, one to each Tweet O’ConnorRatcliff had ever written on her public account.

41 F.4th at 1166. Yet in seeking this Court’s review, the

defendants have chosen to concede that if their social

media use is subject to constitutional scrutiny, the

plaintiffs had a First Amendment right to make these

posts. See Pet. at 11, O’Connor-Ratcliff v. Garnier, No. 22324 (Oct. 4, 2022).

The posture in which this case arises, by contrast, is

more typical of disputes involving state officials who

restrict access to their social media accounts by members

of the public. Freed blocked Lindke after only two critical

comments, both of which were substantive, topical, and

civil. App. 15a-16a. Thus, while the state-action question

is dispositive here, as it is in O’Connor-Ratcliff, the

substantive First Amendment question remains a live

issue only in this case. That posture, in addition to being

more representative of litigation in this area, would allow

the Court to consider aspects of the First Amendment

standard alongside the state-action inquiry, should it

determine that doing so was appropriate.

III. THE DECISION BELOW IS WRONG

In adopting a test that limits the inquiry to two

factors—authority or duty—the Sixth Circuit ignored this

Court’s state-action precedents and their reasoning. As a

result, the Sixth Circuit has given Section 1983’s “under

color of ” requirement a construction that is too broad in

some scenarios and too narrow in others.

First, the Sixth Circuit’s state-action test defies this

Court’s instruction that courts must consider the totality

of the circumstances. As this Court has explained, “the

question whether particular conduct is ‘private,’ on the

one hand, or ‘state action,’ on the other, frequently admits

of no easy answer.” Jackson v. Metro. Edison Co., 419 U.S.

345, 349-50 (1974). Indeed, “[w]hat is fairly attributable

[to the state] is a matter of normative judgment, and the

criteria lack rigid simplicity.” Brentwood Acad. v.

Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288,

295 (2001). For that reason, “no one fact can function as a

necessary condition across the board for finding state

action; nor is any set of circumstances absolutely

sufficient.” Id. at 295.

The decision below contravenes those principles—

both by turning two particular factors into “necessary

condition[s] across the board for finding state action,”

ibid., and by excluding consideration of all other factors.

According to the Sixth Circuit, a public official’s social

media activity constitutes state action “only” where the

activity “derives from the duties of his office” or “depends

on his state authority.” App. 8a. The court also specifically

disclaimed the relevance of all “other” considerations,

such as “a social-media page’s purpose and appearance.”

App. 10a. By thus reducing the complicated and contextdependent state-action inquiry to a narrow formula, the

Sixth Circuit imposed on the inquiry precisely the type of

“rigid simplicity” that this Court has warned against.

Brentwood Acad., 531 U.S. at 295.

Second, the Sixth Circuit’s rule runs counter to the

historical meaning of the key statutory phrase: “under

color of law.” As this Court has explained, that phrase is not

limited to circumstances where the state official’s conduct

in fact was “authorized by state law.” Griffin v. Maryland,

378 U.S. 130, 135 (1964). Rather, it also includes situations

where the official “purport[ed] to act” in a governmental

role. Ibid. (emphasis added); accord West v. Atkins, 487

U.S. 42, 49, 56 n.15 (1988). In such cases, state action is

present even though the public official “might have taken

the same action had he acted in a purely private capacity

or . . . the particular action which he took was not

authorized by state law.” Griffin, 378 U.S. at 135.

Indeed, Section 1983 was designed with precisely that

scenario in mind—where ostensibly private conduct was

imbued with unwarranted authority by the false

“pretense” of governmental endorsement. Evans v.

United States, 504 U.S. 255, 279 (1992) (Thomas, J.,

dissenting) (describing the “definite and well-established

meaning at common law” of “ ‘under color of office’ ”).

Congress enacted Section 1983’s predecessor, the Ku Klux

Klan Act of 1871, 42 Cong., ch. 22, 17 Stat. 13, to combat

the Klan’s reign of terror, which included episodes in

which the involvement of public officials acting outside the

confines of the law had lent additional force to ostensibly

private conduct. See, e.g., Cong. Globe, 42d Cong., 1st

Sess. 320 (1871) (statement of Rep. Stoughton). Given that

context, the majority of circuits are correct that the stateaction inquiry must take account of whether a public

official has “clothed” her conduct “in the trappings of her

public office.” Davison, 912 F.3d at 683.

In the context of social media, that means a court

must consider whether public officials have “present[ed]

. . . their social media pages as official outlets facilitating

their performance of their [official] responsibilities.”

Garnier, 41 F.4th at 1171. Freed’s Facebook use fit that

bill: His page claimed Port Huron’s official website, email

address, and City Hall address; and Freed used the page

to communicate with constituents and announce official

policies, repeatedly posting about City business from the

point of view of the government. See supra pp. 3-5. This

“pretense” of officialdom was no accident. Freed’s social

media use was designed to convey that his page was an

official communication outlet for the City, with the

“purpose and effect of influencing the behavior of others.”

Garnier, 41 F.4th at 1170 (quotation marks omitted).

Finally, the Sixth Circuit’s test is also too broad in

certain respects, because it treats satisfaction of either

criteria (duty or authority) as automatically sufficient to

establish state action. Yet this Court has warned that no

particular circumstance should be treated as “absolutely

sufficient, for there may be some countervailing reason

against attributing activity to the government.”

Brentwood Acad., 531 U.S. at 295-96.

This Court’s cases illustrate the point. In Polk County

v. Dodson, 454 U.S. 312 (1981), the Court considered

whether a public defender “acts ‘under color of state law’

when representing an indigent defendant in a state

criminal proceeding.” Id. at 314. The public defender’s

conduct satisfied both of the Sixth Circuit’s criteria: The

public defender had been “assigned” to represent the

defendant by a county official, thereby “acting to fulfill a

state obligation,” id. at 318, 322 n.13 (quotation marks

omitted); and she “work[ed] in an office fully funded and

extensively regulated by the State,” id. at 322 n.13

(citation omitted).

Yet this Court found neither fact sufficient. Instead,

relying on the public defender’s “function” as an advocate

for a private citizen, the Court concluded that she had not

acted under color of state law. Id. at 319. The Court’s focus

on the public defender’s “function”—overriding the

relevance of her governmental duties and authority in

that particular context—shows why a totality-of-thecircumstances approach is preferable to the Sixth

Circuit’s rigid two-factor test. It also further validates the

circuit majority’s view that the inquiry should take into

consideration the “purpose” for which a social media

account is used. Garnier, 41 F.4th at 1171 (citation omitted).

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,