Kevin Lindke's free speech claims against Port Huron to get SCOTUS review
A local social media figure is getting another chance to test his claims that Port Huron City Manager James Freed violated his First Amendment rights by blocking him on Facebook three years ago — this time, before the nation’s highest court.
Kevin Lindke, known locally for his “Through My Eyes” page, originally questioned the city’s response to COVID-19 when the pandemic first erupted in a post that Freed shared from his personal page. He contested being removed from seeing the social media page in federal district and appeals courts, though both sided with Freed.
On Monday, however, a petition for the case to be reviewed before the U.S. Supreme Court was granted, and parties on each side said they expected to address the issue in depth next fall.
The case itself, which was first heard in the Sixth Circuit, arises amid a larger question regarding government officials blocking critics on social media. While it's a callback to a previous case involving former President Donald Trump on Twitter, it’ll also be heard in tandem with another case about local officials out of the Ninth Circuit that was the reverse of Lindke’s lower-court outcome, finding in favor of the plaintiff.
That trend is something Lindke himself points to in response to the SCOTUS news, adding that Freed, who’s long since deleted his Facebook account, “was the vehicle to get us there.”
“This is much bigger than just me and James and his Facebook page,” he said Monday afternoon. “This is trying to get some parameters and some law in place, and some framework about political officials, social media, and what they can and can’t do when it comes to comments, blocking, and stuff of that nature.”
Allon Kedem, of Arnold & Porter Kaye Scholer LLP, is representing Lindke in Washington. As of midday Tuesday, he said he didn't yet have any comment on the case, referring further discussion to Philip Ellison, who represented Lindke in the previous complaints.
On Monday, Ellison said they were excited to see it progress for further argument, even now as “second chair” in the process.
They began the push for review late last year.
Ellison called it “good fortunate timing” with the Ninth Circuit case, where two California school board officials were ruled to have violated free speech rights when they blocked critical comments from two parents on social media pages created for their campaigns.
He said more extensive briefings would ensue in the coming months, expecting other parties from around the country to chime in on what constituted a state action in free speech issues online.
And win or lose, Ellison said, “Kevin Lindke’s name is going to be tied to the First Amendment come hell or high water.”
Previously, city attorney Todd Shoudy has argued Freed’s Facebook page wasn’t an official site of the city, leaving him the right to ban or bar posters the same way a private resident may.
Tori Ferres, also from Fletcher Fealko Shoudy & Francis PC, represented Freed on appeal and wrote the opposition to the SCOTUS review. She, too, said she found the timing interesting.
“It’s hard to predict where the court’s going to go with this because we have two cases argued on the same day, briefed at the same time, with the opposite facts,” she said. “But I think our facts are really (sound). This (was) James’ Facebook page that he’s had since college. It’s overwhelmingly personal in nature. In our brief that we filed in the district court, we had a chart outlining percentages of times, and some months it was like 85% personal. … It’s really hard to see how there could be a state action in our case.”
The city manager retains Twitter and Instagram accounts that are set as private.
“Although we have won in every court where this has been argued and appealed, I never restarted my Facebook page because I want to protect my family and my kids,” Freed said in a statement Monday. “There are a lot of mentally unstable folks out there, and civility is all but gone from social media. I do miss connecting with family, neighbors, friends, (and) former classmates.”
Contact Jackie Smith at (810) 989-6270 or jssmith@gannett.com. Follow her on Twitter @Jackie20Smith.