Cases & Developments

Opinion vacating and remanding for further proceedings. When James Freed became city manager for Port Huron, Michigan in 2014, he updated his Facebook page to reflect his new position and began posting job-related information. When Kevin Lindke posted comments critical of officials and the city’s response to COVID-19, Freed blocked him. Lindke sued under 42 U.S.C. §1983, characterizing the comments sections on Freed’s Facebook page as a public forum and alleging that Freed had violated his First Amendment rights. The district court granted summary judgment to Freed, finding that he managed his Facebook page in his private capacity and that blocking Lindke was not state action as required to give rise to §1983 liability. The Sixth Circuit affirmed, finding insufficient indicia of a connection between Freed’s official duties and his social-media postings to transform the postings into official action. In vacating and remanding, the Supreme Court held that “[t]he state-action doctrine requires Lindke to show that Freed (1) had actual authority to speak on behalf of the State on a particular matter, and (2) purported to exercise that authority in the relevant posts.” In a Per Curiam opinion in O’Connor-Ratcliff v. Garnier (Mar. 15, 2024), concerning Facebook accounts of two school board trustees created originally for their election campaigns, the Court vacated the judgment of the Ninth Circuit for further proceedings in light of its opinion in Lindke v. Freed.   

Order granting certiorari, vacating, and remanding with instructions to dismiss as moot. Plaintiff-Appellant, Speech First, a national free speech watchdog group, sued Virginia Tech, alleging that the University’s Bias Intervention and Response Team (BIRT) Policy (Bias Policy) violates the First Amendment. In affirming denial of a preliminary injunction, the Fourth Circuit held that Speech First failed to show injury in fact, noting that the BIRT lacks the authority to punish students and that its process is not “so burdensome that an objectively reasonable student would self-censure to avoid encountering it.” Instead, it found that through the Bias Policy the University permissibly “devised a way to educate its student body about both protected speech and the role of tolerance in the campus community.” In a declaration accompanying the brief in response to Speech First’s petition for certiorari, Virginia Tech President Timothy Sands noted that the bias-incident response protocol and BIRT were discontinued in 2023 after a review undertaken by a new Dean of Students and a new Vice President of Student Affairs. The Supreme Court granted certiorari, vacated the judgment below as to the Bias Policy, and remanded with instructions to dismiss the claims as moot. Justice Thomas filed a dissent, in which Justice Alito joined. 

Opinion affirming preliminary injunction. Plaintiffs, employers, and consultants in Florida who conduct or seek to conduct diversity, equity, and inclusion (DEI) trainings in the workplace, bought a First Amendment challenge to Florida’s “Individual Freedom Act” (also called the “Stop W.O.K.E. Act”), which prohibits mandatory workplace trainings that endorse any of a range of statutorily enumerated concepts related to DEI. The Eleventh Circuit affirmed the issuance of a preliminary injunction and found that the Act discriminated on the basis of both content and viewpoint and failed strict scrutiny. The court rejected the State’s argument that it regulates only conduct associated with holding certain meetings, noting that under the Act “the disfavored ‘conduct’ cannot be identified apart from the disfavored speech.” It also rejected the State’s assertion that the Act functions like Title VII, finding that under the Act “speech is not regulated incidentally as a means of restricting discriminatory conduct—restricting speech is the point of the law.”   

Opinion reversing and remanding for further proceedings. Plaintiff, Speech First, a national free speech watchdog group, sued Oklahoma State University alleging that three schoolwide policies chilled protected speech, offering in support pseudonymous declarations from three students asserting that their constitutionally protected expression had been inhibited. The district court dismissed the case for lack of standing, finding plaintiff had not identified by name at least one member who would have standing to bring the claim personally. In reversing and remanding, the Tenth Circuit found that a pseudonym is sufficient to identify a particular person asserting an injury for the purpose of establishing Article III standing.