UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ KEVIN LINDKE, │ Plaintiff-Appellant, │ > No. 21-2977 │ v. │ │ JAMES R. FREED, in his official and personal │ capacities, │ Defendant-Appellee. │ ┘

On Remand from the Supreme Court of the United States. United States District Court for the Eastern District of Michigan at Detroit. No. 2:20-cv-10872—Mark A. Goldsmith, District Judge.

Argued: July 29, 2024

Decided and Filed: August 21, 2024

Before: GILMAN, THAPAR, and READLER, Circuit Judges.*

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COUNSEL ARGUED: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Victoria R. Ferres, FLETCHER, FEALKO, SHOUDY & FRANCIS, PC, Port Huron, Michigan, for Appellee. Katie Fallow, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Amici Curiae. ON SUPPLEMENTAL BRIEF: Philip L. Ellison, OUTSIDE LEGAL COUNSEL PLC, Hemlock, Michigan, for Appellant. Victoria R. Ferres, Todd J. Shoudy, FLETCHER, FEALKO, SHOUDY & FRANCIS, PC, Port Huron, Michigan, for Appellee. ON AMICUS BRIEF: Katie Fallow, Stephanie Krent, KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, New York, New York, for Amici Curiae.

* Judge Ralph B. Guy, Jr., who sat on the original panel in this case, took inactive status on September 30, 2023. Judge Gilman was randomly selected to take his place. No. 21-2977 Lindke v. Freed Page 2

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OPINION _________________

THAPAR, Circuit Judge. Kevin Lindke claims that James Freed, the City Manager of Port Huron, Michigan, violated Lindke’s free-speech rights by blocking him on Facebook and deleting his Facebook comments. We originally ruled for Freed on state-action grounds, but the Supreme Court adopted a different test. Because the factual record isn’t developed enough for us to apply the Supreme Court’s revised test, we remand this case to the district court for further proceedings.

I.

We spelled out the facts of this dispute in our last opinion, so we’ll provide an abbreviated version here. See Lindke v. Freed, 37 F.4th 1199 (6th Cir. 2022), vacated, 601 U.S. 187 (2024). James Freed was the City Manager of Port Huron, Michigan. He maintained a public Facebook page where he posted updates about his personal life and job. Kevin Lindke left comments on these posts that were critical of the city’s handling of the COVID-19 pandemic. In response, Freed deleted Lindke’s comments and “blocked” Lindke from accessing Freed’s Facebook page. Lindke sued under 42 U.S.C § 1983, alleging that Freed’s actions violated Lindke’s First Amendment rights.

We affirmed the district court’s judgment in favor of Freed on the ground that Freed wasn’t engaged in state action. Id. at 1207. We held that an official’s social-media activity could count a