In Lindke v. Freed, the Sixth Circuit affirmed the District Court for the Eastern District of Michigan's judgment in favor of the appellee because the mere inclusion of his title of "City Manager" on Facebook did not signify that his Facebook activity was state action. (1) Therefore, his activity did not contravene the federal rights of the appellant. (2) The court recognized the "state-official test" as the appropriate framework through which to evaluate the social media activity of public servants, which requires that such activity be either an "actual or apparent duty" of public office or else be dependent upon "the authority of [public] office." (3)
I. BACKGROUND
Prior to his appointment as City Manager in Port Huron, Michigan, James Freed joined Facebook to connect with his social circle. (4) His profile was initially a private account, accessible only to those with whom he mutually agreed to connect, but he eventually accrued so many connections that he converted his profile to a "public figure" page, which allowed an unlimited number of followers. (5) After his appointment, he updated his Facebook page to include, along with other personal information, his title of "City Manager, Chief Administrative Officer for the citizens of Port Huron, MI." (6) The contact details of the page (website, email, and physical address) were that of Port Huron's city hall and administration. (7)
Freed posted a variety of content to his page, drawn from both his private and professional life. (8) In 2020, he posted about policies he initiated for Port Huron in the wake of the COVID-19 pandemic. (9) A Port Huron citizen, Kevin Lindke, was critical of Freed's policies and expressed his displeasure in the comments on Freed's Facebook posts. (10) In response, Freed deleted Lindke's comments and eventually blocked Lindke from viewing and interacting with his page. (11) Frustrated that he could no longer access Freed's page to express his views, Lindke sued Freed in federal court under 42 U.S.C. [section] 1983, which 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." (12) Lindke alleged that Freed "violated his First Amendment rights by deleting his comments and blocking him from the page." (13) The District Court for the Eastern District of Michigan granted summary judgment to Freed. Lindke appealed to the United States Court of Appeals for the Sixth Circuit. (14)
II. ANALYSIS
On appeal, the Sixth Circuit affirmed the district court's judgment in favor of Freed, rejecting Lindke's argument that Freed acted "under color of any statute, ordinance, regulation, custom, or usage, of any State" when he deleted Lindke's comments and blocked him from the page. (15) Courts have interpreted the language of 42 U.S.C. [section] 1983 to mean that a defendant must be acting in a state capacity for liability to attach to his actions. (16) This state action requirement is dependent upon whether a defendant's actions are "fairly attributable to the State." (17) A state official's actions are not state action when they are within "the ambit of [his] personal, private pursuits." (18) The Sixth Circuit, acknowledging that case law is a little "murky" with regard to the division between official and personal acts, sought to "realign how state officials' actions fit into the current framework," in the context of "the ever-changing world of social media." (19)
A. The "State-Official Test" Framework
The Supreme Court has set out three tests by which to evaluate state action: the public function test, the state-compulsion test, and the nexus test. (20) However, these tests are intended to assess whether a private party has engaged in state action, not to distinguish between a public servant's official and personal activities. Consequently, drawing upon their own precedent, the Sixth Circuit applied the "state-official test." (21) This test directs the court to inquire whether a state 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.'" (22) It draws upon Supreme Court guidance pertaining to public officials, which allows that a "public employee acts under the color of state law while acting in his official capacity or while exercising his responsibilities pursuant to state law." (23) In addition, the state-official test may be thought of as an alternate version of the Supreme Court's nexus test, which asks whether a defendant's activity "may be fairly treated as that of the State itself." (24) In answering these questions, courts must evaluate whether a defendant's action is "'entwined with governmental policies' or subject to the government's 'management or control.'" (25) The state-official test applies these same sub-questions to the activity of a public servant. (26)
B. State Action in the Age of Social Media
In the context of social media, the Sixth Circuit decided that pages and accounts must be assessed as a whole, rather than by singular posts, because too narrow a focus would belie the larger context necessary to answer the test's questions. (27) A public official's social media activity must be subject to the same state action test, and ask whether such activity is "part of an officeholder's 'actual or apparent dut[ies],'" or "depends on his state authority." (28) An example of social media activity that would meet this test is that of an official who is mandated by law to maintain a social media account: "a page can constitute state...
