Inside Kevin Lindke's free speech case — now with a Halloween SCOTUS date

Kevin Lindke’s free speech claims against Port Huron City Manager James Freed now have an official date before the nation’s highest court: Halloween.

That’s when the question as to whether Freed acted in his official capacity when he blocked the local social media influencer on Facebook three and a half years ago will be put to the test — an imminent event that's pushed both individuals and the city into a national spotlight.

More than a dozen agencies across the country have begun to weigh in on the case in briefs ahead of the U.S. Supreme Court’s hearing arguments on Oct. 31.

But regardless of how SCOTUS ultimately rules, representatives on each side admit Lindke and Freed will play a big role in changing the social media landscape for government workers amid larger shifts in how members of the public can access them.

“I think the original point still stands,” said Tori Ferres, the city’s attorney on the case. “The biggest thing that is coming out, and I think this is why we see all the state support, is that government officials need some type of guidance on what they can and can’t do on social media. … It’s not just affecting Washington’s elite. It’s affecting the everyday city manager like James.”

Lindke, known first for starting the popular but controversial “Through My Eyes” Facebook, now mans affiliated content on other platforms like TikTok and YouTube, as well as through the site bluewatercurrent.com.

The 43-year-old St. Clair County resident initially claimed Freed violated his First Amendment rights after he criticized the city’s response to COVID-19 and was removed from the official’s Facebook near the start of the pandemic.

Freed’s page has long since been deleted — he still maintains private accounts on Instagram and X, formerly known as Twitter — and rulings in both Lindke’s original 2020 complaint in the U.S. Sixth Circuit and his federal appeal the following year sided with the city manager.

Next, those claims are being heard in tandem this fall with another case out of the Ninth Circuit that saw a reverse ruling that conflicts with the Sixth’s decision. Though similar in subject, the Ninth’s case differed in who it impacted with officials who were elected to a California school board versus being appointed to a government position like Freed.

Each case is far from the first to contest critics being blocked by those in power — the most prominent example coming from Twitter users blocked by former President Donald Trump in a lawsuit the court dismissed two years ago.

The Lindke-Freed Oct. 31 date was set earlier this month.

In an interview on Sept. 7, Lindke called the pre-SCOTUS experience “surreal.’

“Especially with what I do, the way I utilize social media, the way I confront public officials, the way me and those public officials engage with one another on social media,” he said, “I think (it is) sensational that this issue has made its way all the way to the top.”

Still, as local government agencies adjust how they manage their social media in a post-pandemic era, the challenge before SCOTUS may not be the last one to come from online figures like Lindke.

A 'new world of social media'? Solicitor general, ACLU, more chime in

Freed and city attorneys have maintained his former Facebook page was personal with a mix of some city goings-on and family updates and pictures dating back to well before he was in a public position.

Over the summer months this year, multiple government agencies sided with the city’s position, affirming lower court rulings and taking issue with Lindke’s petition that claims blocking him was not an action of Freed the private citizen, but Freed the public official.

The state of Texas called that treatment “legally unworkable,” writing in an Aug. 15 amicus brief, “The state action doctrine serves to preserve the individual liberty not only of private citizens but also of those who serve them in state government.”

Earlier this month, Ferres said that’s the “real danger in the petitioner’s test.”

“It’s going to chill public officials’ speech,” she said. “… They’re not going to be able to have the same type of speech that an average American (has) just because they’ve accepted public service.”

A brief naming U.S. Solicitor General Elizabeth Prelogar describes a similar point. Though publicly visible, they argued, Freed’s personal Facebook amounted to his private property.

“Respondent created that account when he was a college student and converted his profile into a publicly accessible page before he was appointed as city manager,” the U.S. brief reads. “… The account use(d) (the) respondent’s own name, not his public office, as the page title and username. And respondent would continue to exercise exclusive control over that account even if he ceased to be the city manager.”

But other entities disagreed. Some argued the previous rulings should be reversed.

The American Civil Liberties Union and ACLU of Michigan argued the U.S. Sixth Circuit was wrong to ignore the appearance of government involvement and that Freed “maintained his social media site in a manner that would cause a reasonable observer to believe he was exercising state authority.”

Lindke’s SCOTUS attorney Allon Kedem referred comment to attorney Philip Ellison, who represented him in the 2020 federal lawsuit and subsequent appeal.

He said the brief process had been “enlightening” with a “kind of new world of social media.”

The petitioner’s latest brief was filed Sept. 7, calling the solicitor general’s property argument “flawed” and the wider assertion enabling blocking social media commenters as “substantially underinclusive.”

“My mind hasn’t been changed,” Ellison said. “… I still think that it’s important that people have full and complete access to their government officials.”

The ACLU wrote Lindke’s case doesn’t address whether the First Amendment directly prohibits Freed from blocking him: “Answering that question will require a separate set of inquiries — for example, whether the page constitutes a public forum … and whether Freed curated his page in a viewpoint neutral manner.”

The city closed comments on its Facebook pages. Here's why.

As more residents turned to social media and the Internet for questions during the pandemic, entities like the St. Clair County Health Department were early adapters to close comments on Facebook posts.

Within the last couple of years, the city of Port Huron, too, has begun to limit or turn off comments on multiple of its Facebook pages.

But officials said that isn’t because of Kevin Lindke — nor, any single thing.

Rather, it’s a confluence of reasons that reportedly make oversight of those forums more difficult, officials said. What’s left? A new general practice of closing comments, while leaving sharing and direct-messaging options open.

“We do not have the ability to moderate what people comment on,” Freed said in an interview this month. “So, if you use profanity or foul language, we can’t delete that. And so, for us, we just prefer to turn off the comments. Because the comments, they’re not needed. These (Facebook posts) are for getting information out.”

Lindke and Ellison have drawn an issue with the practice, as the attorney said they “should be more inclusive and more welcoming to all forms of comments.”

A Times Herald survey of every message sent to the city’s Facebook pages since the start of 2023, acquired through a Freedom of Information Act request, showed that new practice hasn’t necessarily kept commenters from reaching out to some city departments.

The city’s fire department only received a handful of messages all year. The police department’s messages are also turned off, according to the clerk’s office. The busiest inboxes were on the pages for Port Huron Parks and Recreation, Downtown Port Huron, and McMorran Place and McMorran Plaza.

The general parks and rec page saw over 130 messages. Separate pages for the McMorran complex and plaza saw roughly 100.

There were some complaints sent to staff manning those Facebook pages, though mostly questions and general comments came in about events at McMorran, the plaza’s new ice rink last winter, or parks and rec’s Rockin’ the Rivers concerts in August. No one in those messages appeared to draw issue with not being able to comment directly on Facebook posts more recently.

For the Downtown Port Huron page, there were close to 70 messages — also mostly questions and comments about events, as well as inquiries about local businesses.

Overall, Downtown Development Authority Director Natacha Hayden said she still found they were “fairly accessible” because of direct messages. Initially, she said she was concerned from marketing perspective if Facebook users couldn’t tag their friends in the comments of posts but added plenty “share with the share button.”

There have, however, been a small number of complaints to downtown’s Facebook inbox, including two about turning comments off.

In response to a resident who threatened to unfollow the downtown page, the city cited scammers posting “harmful things” in comments and the defamation risk it posed to municipalities hosting that speech on its platform.

That was exchange was in January.

Another message on Aug. 4 from the Blue Water Current threatened legal action, adding, “You cannot block, nor delete comments. Ask (fellow city attorney Todd) Shoudy.”

This month, Lindke acknowledged that was him.

Contact Jackie Smith at (810) 989-6270 or jssmith@gannett.com.

This article originally appeared on Port Huron Times Herald: Inside Kevin Lindke's free speech case — now with a Halloween SCOTUS date