Lindke v. Freed

37 F.4th 1199

Kevin LINDKE, Plaintiff-Appellant,

v.James R. FREED, in his official and personal capacities, Defendant-Appellee.

No. 21-2977

United States Court of Appeals, Sixth Circuit.

Argued: April 27, 2022

Decided and Filed: June 27, 2022

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. ON BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Todd J. Shoudy, FLETCHER, FEALKO, SHOUDY & FRANCIS, PC, Port Huron, Michigan, for Appellee.

Before: GUY, THAPAR, and READLER, Circuit Judges.

THAPAR, Circuit Judge.

James Freed prized his roles as father, husband, and city manager of Port Huron, Michigan. So his Facebook page listed all three. The question here is whether involving his job makes Freed's Facebook activity state action. In Freed's case, it does not.

I.

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, he grew 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 appointed city manager for Port Huron, Michigan. So he updated his Facebook page to reflect his new title. In the "About" section, he most recently described himself as "Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI." R. 1-1, Pg. ID 17. Freed listed the Port Huron website as his page's website, the City's general email for "City Administration and Staff" (CommunityComments@PortHuron.org) as his page's contact information, and the City Hall address as his page's address.

Freed was an active Facebook user whose page featured a medley of posts. He shared photos of his daughter's birthday, his visits to local community events, and his family's weekend picnics. He also posted about some of the administrative directives he issued as city manager. And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.

Freed's Covid-19 posts caught the attention of one disconcerted citizen, Kevin Lindke. Lindke didn't approve of how Freed was handling the pandemic. He saw Freed's posts about new policies 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 kept Lindke from commenting on Freed's page and its posts.

Upset that he could no longer use Facebook to engage with the city manager, Lindke sued Freed in federal court under 42 U.S.C § 1983. He argued that Freed violated his First Amendment rights by deleting his comments and blocking him from the page. The district court granted summary judgment to Freed, and Lindke appeals.

II.

Section 1983 provides a cause of action when federal rights are violated by someone acting "under color of any statute, ordinance, regulation, custom, or usage, of any State." 42 U.S.C. § 1983. Courts have interpreted this language to mean that a defendant must be acting in a state capacity to be liable under the statute. West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). This is known as the "state action" requirement, and it turns on whether a defendant's actions are "fairly attributable to the State." Lugar v. Edmondson Oil Co. , 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

How do we know if Freed was engaged in state action? One might think it's easy—Freed is a state official, after all. So we might assume everything he does is state action. But the analysis isn't that simple. When a state official acts "in the ambit of [his] personal, private pursuits," section 1983 doesn't apply. Stengel v. Belcher , 522 F.2d 438, 441 (6th Cir. 1975). In this way, the doctrine draws a line between actions taken in an official capacity and those taken in a personal one. But the caselaw is murky as to when a state official acts personally and when he acts officially. That imprecision is made even more difficult here, since we must apply the doctrine in a novel setting: the ever-changing world of social media.

To clear the state-action waters, we analyze the current state of the doctrine and realign how state officials' actions fit into the current framework. We then explain when state officials' social-media activity constitutes state action. And lastly, we conclude Freed maintained his Facebook page in his personal capacity.¹

A.

The Supreme Court has identified three tests for assessing state action: (1) the public-function test, (2) the state-compulsion test, and (3) the nexus test. Lugar , 457 U.S. at 939, 102 S.Ct. 2744 ; see Chapman v. Higbee Co. , 319 F.3d 825, 833 (6th Cir. 2003) (en banc) (adopting the same). But each of these tests is framed to discern whether a private party's action is attributable to the state—they don't make clear the distinction between public officials' governmental and personal activities.

So in practice, our court has applied a different test when asking whether a public official was acting in his state capacity—which we'll call the "state-official test." See, e.g. , Dean v. Byerley , 354 F.3d 540, 552–53 (6th Cir. 2004) ; Waters v. City of Morristown , 242 F.3d 353, 359–60 (6th Cir. 2001). This test asks 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." Waters , 242 F.3d at 359. It stems from our recognition that public officials aren't just public officials—they're individual citizens, too. And it tracks the Supreme Court's guidance as to public officials and state action. See West , 487 U.S. at 50, 108 S.Ct. 2250 ("[A] public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law."). These questions make sense in our context—they speak to whether Freed ran his Facebook page in his official or his personal capacity.

Though we haven't explained before how the state-official test fits within the Supreme Court's framework, it is simply a version of the Supreme Court's nexus test. Under the nexus test, the ultimate question is whether a defendant's action "may be fairly treated as that of the State itself." Jackson v. Metro. Edison Co. , 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). To answer that question, we analyze whether his action is "entwined with governmental policies" or subject to the government's "management or control." Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n , 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001) (quoting Evans v. Newton , 382 U.S. 296, 299, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966) ).

The state-official test mirrors these questions. Whether an official acts pursuant to his governmental duties or cloaked in the authority of his office is just another way of asking whether his actions are controlled by the government or entwined with its policies. Compare Waters , 242 F.3d at 359–60 (applying the state-official test to a city alderman's actions), with Chapman , 319 F.3d at 834–35 (applying the nexus test to an off-duty sheriff's deputy's actions). In short, the state-official test is how we apply the nexus test when the alleged state actor is a public official.

B.

Thus, we turn to social media. When analyzing social-media activity, we look to a page or account as a whole, not each individual post. That's because to answer our cornerstone question—whether the official's act is "fairly attributable" to the state—we need more background than a single post can provide. Looking too narrowly at isolated action without reference to the context of the entire page risks losing the forest for the trees.

When does a public official run his Facebook page as an official? See Waters , 242 F.3d at 359. And when is a page a personal pursuit beyond section 1983's ambit? See Stengel , 522 F.2d at 441. Despite the new context, the answers to these questions remain rooted in the principles of our state-official test. So just like anything else a public official does, social-media activity may be state action when it (1) is part of an officeholder's "actual or apparent dut[ies]," or (2) couldn't happen in the same way "without the authority of [the] office." Waters , 242 F.3d at 359. Consider some examples.

Perhaps the most straightforward instance of an actual duty is when the text of state law requires an officeholder to maintain a social-media account. That is, a page can constitute state action if the law itself provides for it. So if Cincinnati decided that its residents would benefit from a public-safety Facebook page run by the police chief, it could pass a law directing the chief to operate such a page. Maintaining that page would then be one of the police chief's actual duties—and thus, state action. See id. This fact pattern fits neatly within the text of section 1983 ; the public official operates the social-media page "under color of [a state] statute, ordinance, [or] regulation." 42 U.S.C. § 1983.

The use of state resources may also indicate that running a social-media account is an official's "actual or apparent duty." Waters , 242 F.3d at 359. Take an example involving state funds. A city councilwoman is given a budget for community outreach efforts. She spends some of that budget to pay for her account on a paid social-media platform, or for paid features (like ads) on a free platform. Here, her use of state funds to pay for the account suggests that operating the account is within her job duties—and thus, state action.

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