Outside Legal Counsel PLC

US Supreme Court to Hear Case Started by OLC in Federal Court

For Immediate Release | Apr 24, 2023

The United States Supreme Court has granted a writ of certiorari (i.e. an order accepting an appeal) on a case started by Outside Legal Counsel on behalf of a Port Huron, Michigan resident who suffered from the deletion of Facebook comments.

The highest court took up Kevin Lindke's appeal of the lower courts' rulings against him after he sued Port Huron's city manager for blocking Lindke on Facebook following critical posts about the local government's COVID-19 response.

At issue is whether public officials' social media posts are "governmental action" or "state action," which are then subject to First Amendment limits on government regulation of speech.

The federal trial court dismissed the case after US District Court Judge Mark Goldsmith concluded that Lindke failed to the meet a 14-factor test to establish that the social media account, which was registered to Port Huron City Hall, was actually state action.

Lindke appealed to the Sixth Circuit who affirmed on different legal grounds. Instead of adopting the 14-factor test established by the federal district court, the Sixth Circuit developed its own standard, the duty-or-authority test, to conclude that state action only exists when an official was performing a "duty of his office" or invoking the "authority of his office." In other words, a public official operates a social-media account as state action only when either (1) pursuant to his actual or apparent duties or (2) using his state authority. Oral arguments were handled by OLC attorney Philip L. Ellison.

Shortly after, the Ninth Circuit issued a decision in a similar case concluding that the Sixth Circuit's analysis was "a somewhat different analysis" and contrary to decisions from the Second, Fourth, and Eighth Circuits. It "decline[d] to follow the Sixth Circuit's reasoning."

With the assistance and leadership of attorney Allon Kedem and his team at Arnold & Porter, Lindke appealed to the US Supreme Court.

In his petition for certiorari, Kedem pointed out that Freed's Facebook Page was registered to 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. "This 'pretense' of officialdom was no accident."

On April 24, 2023, the petition was granted. The case is being heard with the Ninth Circuit's decision finding in favor of several private citizens. Oral arguments are expected in Fall 2023.