The U.S. Supreme Court hears arguments Tuesday in a pair of important cases that test the ability of public officials to block critics from their personal social media pages.
The cases echo issues raised in a now-defunct suitagainst then-President Donald Trump for blocking his critics on Twitter, now known as X.
Kevin Lindke, a frequent gadfly of the Port Huron, Mich., government, sued the city manager, James Freed, because Freed blocked him from his personal Facebook page.
Lindke says that he began posting comments on Freed's page at the beginning of the COVID-19 pandemic because he found information there that was not available elsewhere.
Freed "was putting out policy directives. He was issuing press statements," Lindke says. "This was the only place the information was being relayed to the community."
Freed says that he is not an elected official and that his personal Facebook page dates back to his college years. He says that he has maintained the page at home on his personal computer and that the constituent information that he put on Facebook was already public, through the city's communications office and local media.
"Eighty percent of the posts are my personal family photos, pictures of my dog. I'm a foodie. ... I like to show pictures where I go out to eat," says Freed. It is "not uncommon" to have people with "mental health challenges" target public officials, Freed observes. But he had always considered his page personal and under his control. "Had I thought for a moment that this page was public and I didn't control it, I would never have posted photos of my little girls or my wife."
The reference to people with mental health issues is not incidental.
While Freed says he has no specific memory of Lindke's comments on his Facebook page, he says he blocked Lindke because of his aggressive behavior. "For a good chunk of this case, he was incarcerated for stalking individuals," Freed says.
Lindke maintains that his incarcerations were related to his nine-year custody battle and that regardless, his brushes with the law have had nothing to do with this case. He says he sued Freed for blocking his comments on what amounted to a government Facebook page.
"This has been an ongoing issue with Mr. Freed as far as blocking people, deleting them. He's been doing it for years and years. I'm the first person to actually challenge him on it," Lindke says.
Lindke has been involved in altercations with other public officials and was even carted out of a city council meeting. But lots of difficult people prevail in cases that test important constitutional principles.
The question before the court
The issue at the Supreme Court on Tuesday is how courts should evaluate these questions when they occur on a public official's social media page. Most appeals courts have ruled that when public officials create an online place for public comments, the First Amendment's freedom of speech prevents those officials from barring people whose comments they don't like.
That was the ruling in the other social media case that the court hears Tuesday. It involves two school board members in Poway, Calif., who maintained that their social media pages were an extension of their campaign pages and thus were personal. The 9th U.S. Circuit Court of Appeals didn't buy that argument, holding that when public officials have social media pages that are open to public comments, they can't block even annoying and repetitive comments.
But in the Port Huron case, the 6th U.S. Circuit Court of Appeals ruled that Freed's Facebook page was personal, that he did not use his government authority to maintain it and that, therefore, he was not using his office to block Lindke. In short, he was not using the state's authority to suppress Lindke's speech.
What the lawyers argue
Local governments have weighed in on these cases at the Supreme Court. Emphasizing that government officials have First Amendment rights too, they are asking the justices to set out a clear standard that is easy to apply so that local officials understand what the rules are and when they might be liable.
Amanda Karras, general counsel of the International Municipal Lawyers Association, sets out what she calls the "authority test." Does the local government own the social media account? Does it authorize or require creation of the account, and does the account utilize government resources?
Countering that argument in the Supreme Court on Tuesday, Lindke's lawyer, Allon Kedem, will argue that this is not enough. When public officials invoke the trappings of their office on social media, he says, they can't suppress the speech of their critics.
"One of the key aspects of this case is that Mr. Freed was talking to the public as a city manager," Kedem says. Freed was "essentially performing his job by answering their questions about the services that the city was providing."
If all of this sounds familiar, that's because when Trump was president, he used his personal Twitter account to communicate with the public and blocked his critics. Two lower courts ruled that this was illegal before he left office.
Freed, the city manager, maintains his case is entirely different.
"No city staff had access to my account. They never worked on my account," Freed says. "I ran it myself, whereas in the Donald Trump case, White House staff was accessing and posting on the page. White House staff on official federal devices had access to the page. Those are some pretty keynote differences."
Kedem, Lindke's lawyer, says those are distinctions without a difference — that the Lindke case and the Trump case are the same. And in fact, he says the Lindke case is perhaps more important.
"To a lot of people in the country, the city manager of their town makes decisions that have a lot more direct effect on their lives and the lives of their family than the president," Kedem says. People want "a way to communicate with the city manager. And so, the question here is just do they get that chance."
A decision in the case is expected by summer.
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