Can politicians block their constituents online? Michigan provocateur appeals to Supreme Court

(PORT HURON, Mich.) — Kevin Lindke has taken a wrecking ball to old buildings as part of a family business and in his free time uses his small-town influencer status on social media to challenge people in power.

“You need anger sometimes,” Lindke said in an interview.

The 43-year-old father-turned-provocateur, who is also a convicted felon and local media personality, has gotten so passionate from time to time that his aggression landed him in jail.

“I tried to be the nice guy with a lot of stuff I have going on. That didn’t work,” he said. “They just run over you. So the anger is — as long as it’s controlled, it’s a benefit to what I got going on.”

Now, Lindke is directing that anger at an issue that is a growing subject of debate online: whether public officials can block criticism from constituents on their personal social media accounts.

The question will be taken up by the U.S. Supreme Court on Tuesday in a pair of cases, including one brought by Lindke. The answer could bring major changes to the nation’s political debate, which increasingly plays out on online comment boards and profile pages.

“Free speech is free speech, and you know, we have to preserve that,” Lindke said.

The dispute began in March 2020 when Lindke lodged complaints — sometimes under different usernames — about the government’s COVID-19 response on the personal Facebook page of Port Huron city manager James Freed.

“I said, ‘Your response to the pandemic has been abysmal.’ And I said, ‘The city deserves better,'” Lindke said.

He said Freed’s page had all the trappings of an official account: identifying him as a “public figure,” showing his official photo and, in between posts about his family, including posts about his handling of COVID-19.

After several days, Lindke said, he was blocked from the page and his comments were erased.

“All of a sudden they all just disappeared,” he said.

Freed, 38, who was appointed city manager in 2014 and is a dedicated dad of two, insists his Facebook page was personal.

“I’ve had Facebook since college. It was a lot of photos that I liked about eating — I’m a foodie — a lot of photos of my wife and kids, our vacations, pictures of my dog,” Freed said in an interview at city hall. “The only difference was I had about 15,000 followers.”

With so many followers, Freed said, he was required to make his page publicly accessible under Facebook’s policy. While some posts mentioned his job, he noted the page was not government-owned or maintained or considered a responsibility of the job of city manager.

“When it’s communication from my office as city manager regarding work for our residence, we use formal press releases, media releases to the official media around the city,” Freed said. “Facebook was just a secondary.”

Freed said he regularly accepts criticism from residents, including in posts on his Facebook page, but that it was his prerogative as to whether that commentary should remain visible.

“I didn’t block him out of what he posted, because I really can’t recall what he posted. I blocked him out of who he was — a convicted felon,” Freed said. The page is “not a public forum. You can write me a letter on my city email address. You can come to my office and talk to me. There are literally 100 different ways to get your criticism to me. But my personal Facebook page doesn’t have to be one of them.”

After Lindke filed suit against Freed for alleged First Amendment violations, two lower courts sided with Freed, concluding that the Facebook page was not part of his official duty or a reflection of public authority.

Lindke is now appealing to the Supreme Court, arguing that the appearance of the page as a seemingly official extension of Freed’s office should subject it to protections for free speech.

It’s a high-stakes debate over personally owned social media accounts operated by government officials, many predating their time in office, and the First Amendment that is increasingly visible in the public square.

“Public officials have been using social media accounts as a primary way to talk to constituents about the work of government and to hear from them,” said Katie Fallow, an attorney with the Knight First Amendment Institute at Columbia University, which is sympathetic to Lindke’s view. “It is extremely important that people be able to speak to their public officials without fearing that they’re going to be censored because of their viewpoints.”

Cases have been growing of public officials allegedly silencing or censoring their critics online.

In a case from California also before the Supreme Court this fall, a group of parents sued two school board members for blocking their criticism on social media — and won in a lower court. In a case from 2017, so did a group of Twitter users who had been blocked by Donald Trump after criticizing his presidency. It reached the Supreme Court but was dismissed because Trump had left office.

“I think we’re looking at the same case here as the Trump case,” said Lindke, “because Mr. Freed ended up using his Facebook page to give directives about the COVID response and all that, and at that point it seemed pretty official.”

Freed said millions of public officials nationwide have rights, too — including owning and managing a personal account on social media.

“If I was using an official city of Port Huron Facebook page and I was blocking people, I think we’d have an issue. But I wasn’t. Anyone who looks at that page knows it’s not official communication, and if it was official communication, if that was my official city manager Facebook page, I would not have posted pictures of my kids,” he said.

Lindke said there need to be clearer rules and, while he hopes to win his high court case, he feels in some ways he’s already won.

“My hope is that the justices, one way or the other, they are going to put a bright line rule in place about social media and public officials in their activities on there,” he said. “The law is the law, and the law should be followed, especially by the stewards of the law and the ones that are enforcing it.”

The justices are expected to hand down a decision by the end of June 2024.