No Shield in a PPO: Retaliatory Protective Orders Against Citizen Critics Clearly Violate the First Amendment, and Private Co‑Conspirators Act Under Color of Law

Introduction

In Charles Blackwell v. Steven Chisholm (Nos. 24‑1947/1951), the Sixth Circuit addressed whether city officials are entitled to qualified immunity where a citizen alleges they retaliated against his protected speech by obtaining a personal protection order (PPO) premised on “stalking or other threatening behavior.” The panel (Judges Readler, Murphy, and Bloomekatz; opinion by Judge Bloomekatz) affirmed the denial of qualified immunity to Inkster’s City Attorney David Jones and Councilmember Steven Chisholm and dismissed the City of Inkster’s interlocutory appeal for lack of jurisdiction.

The case sits at the intersection of First Amendment retaliation, state‑action doctrine as applied to private collaborators, and interlocutory appellate jurisdiction over municipal liability. The court held that:

A citizen’s caustic criticism of a public official at a city council meeting—here, a satirical poster and calling the official a “chump”—is squarely protected speech.
Retaliatory use of a PPO process to curtail that speech constitutes adverse action likely to chill an ordinary person, even if remote attendance options (e.g., Zoom) exist.
At the pleading stage, it is clearly established that public officials may not mischaracterize protected criticism as “stalking” to trigger judicial restraints; Barrett v. Harrington and Rudd v. City of Norton Shores already gave fair warning.
A private collaborator can satisfy § 1983’s “under color of state law” requirement via a plausibly alleged conspiracy with a state actor; the court therefore did not reach the more nuanced Lindke v. Freed social‑media state‑action question.
Pendent appellate jurisdiction does not extend to the City’s Monell dismissal at this stage because the municipal issues are not inextricably intertwined with the qualified‑immunity questions.

Although unpublished and “Not Recommended for Publication,” the opinion provides a detailed, tightly reasoned application of established First Amendment and § 1983 principles to the increasingly common tactic of leveraging civil protection orders against outspoken critics.

Summary of the Opinion

The court took the complaint’s allegations as true. After Blackwell criticized City Attorney Jones at a public meeting—displaying a satirical poster and calling Jones a “chump”—Councilmember Chisholm, allegedly at Jones’s request, captured screenshots from Blackwell’s private Instagram depicting lawful firearm ownership and emailed them to Jones. Jones filed an ex parte PPO petition labeling Blackwell’s public conduct “stalking or other threatening behavior,” and a Michigan trial judge granted a year‑long PPO restricting Blackwell’s movement, communications, and firearm possession. The Michigan Court of Appeals later reversed, deeming the speech protected.

In Blackwell’s § 1983 suit for First Amendment retaliation:

The Sixth Circuit held that Blackwell adequately pleaded that Chisholm acted “under color of state law” by conspiring with Jones, a state actor, to pursue retaliatory measures.
The court affirmed the denial of qualified immunity to Jones and Chisholm, finding it plausible that they violated clearly established law by using stalking accusations and a PPO to punish protected speech.
As to Inkster’s municipal liability appeal, the court dismissed for lack of interlocutory jurisdiction; resolving qualified immunity does not necessarily resolve Monell liability, which may exist even if individuals are immune.

Analysis

Precedents Cited and Their Influence

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985): Anchor the principle that private parties who conspire with state actors are deemed to act under color of law. The court relied on this line to bypass a pure Lindke analysis and hold that Chisholm’s alleged collaboration with Jones sufficed at the pleading stage to meet § 1983’s state‑action requirement.
Lindke v. Freed, 144 S. Ct. 756 (2024): Clarifies when public officials’ social‑media activity constitutes state action. The court noted Lindke but found it unnecessary to apply given the adequately pleaded conspiracy.
Josephson v. Ganzel, 115 F.4th 771 (6th Cir. 2024), Thaddeus‑X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc), and Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002): Provide the three‑part First Amendment retaliation framework (protected conduct, adverse action, causation) and the “ordinary firmness” standard. The court applied these to conclude Blackwell plausibly alleged each element.
Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), Holzemer v. City of Memphis, 621 F.3d 512 (6th Cir. 2010), Zilich v. Longo, 34 F.3d 359 (6th Cir. 1994), Rosenblatt v. Baer, 383 U.S. 75 (1966), and Texas v. Johnson, 491 U.S. 397 (1989): Emphasize that criticism of public officials, including sharp or offensive commentary, lies at the core of First Amendment protections. The court drew on these to reject “right to be left alone” and “fighting words” defenses.
Greene v. Barber, 310 F.3d 889 (6th Cir. 2002) and Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022): Confirm the narrowness of the “fighting words” exception and uphold protection for vulgar insults stronger than “chump,” underscoring the speech at issue remained protected.
Youkhanna v. City of Sterling Heights, 934 F.3d 508 (6th Cir. 2019): Explains that whether a meeting is a limited public forum affects permissible regulations, not whether the speech’s content is categorically protected; the court used this to dispel a forum‑status objection.
King v. Zamiara, 680 F.3d 686 (6th Cir. 2012) and Lemaster v. Lawrence County, 65 F.4th 302 (6th Cir. 2023): Establish causation standards, including temporal proximity and burden shifting on but‑for causation once protected speech is shown to be a substantial factor. The court leveraged the close temporal link and the PPO petition’s own framing to infer retaliatory motive at the pleading stage.
McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005) and Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F.3d 592 (6th Cir. 2007): Support traditional foreseeability‑based proximate causation in § 1983 cases and reject the notion that intervening court action breaks the chain where it is a foreseeable result of the defendant’s conduct. This defeated the argument that the state court’s PPO, as the “immediate trigger,” insulated the officials.
Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997) and Rudd v. City of Norton Shores, 977 F.3d 503 (6th Cir. 2020): The lynchpins of the clearly‑established analysis. Barrett held that a judge’s retaliatory accusation of “stalking” in response to criticism violated clearly established law; Rudd recognized that obtaining a protection order by falsely accusing a critic of stalking is an adverse action. Together, they provide the “fair and clear warning” that using stalking allegations (including to secure a PPO) in response to protected criticism is unconstitutional.
Ashcroft v. al‑Kidd, 563 U.S. 731 (2011), Anderson v. Creighton, 483 U.S. 635 (1987), District of Columbia v. Wesby, 583 U.S. 48 (2018), and Reichle v. Howards, 566 U.S. 658 (2012): Frame the qualified‑immunity “clearly established” standard and its need for specificity. The court acknowledged these constraints but found Barrett and Rudd specific enough to place the unlawfulness beyond debate here.
Diei v. Boyd, 116 F.4th 637 (6th Cir. 2024) and Heeter v. Bowers, 99 F.4th 900 (6th Cir. 2024): Note that in First Amendment contexts, fuller factual development sometimes informs “clearly established” inquiries, yet the court found the unlawful retaliation sufficiently pleaded even at Rule 12(b)(6).
Crockett v. Cumberland Coll., 316 F.3d 571 (6th Cir. 2003), Summers v. Leis, 368 F.3d 881 (6th Cir. 2004), Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995), Lane v. City of LaFollette, 490 F.3d 410 (6th Cir. 2007), and Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. 1999): Establish limits on interlocutory appeals and pendent appellate jurisdiction. The court relied on these to dismiss the City’s Monell appeal as not “inextricably intertwined.”
Baker v. Union Twp., 587 F. App’x 229 (6th Cir. 2014): Illustrates that a municipality may be liable for ratification even where individuals receive qualified immunity—underscoring why the City’s appeal could not ride the coattails of the officials’ interlocutory appeal.

Legal Reasoning

1) State action via conspiracy

The court held it unnecessary to resolve whether Chisholm’s Instagram activity was “official” under Lindke. Instead, Blackwell plausibly alleged a three‑part conspiracy with a known state actor (Jones): (i) a single plan to retaliate (obtain a PPO); (ii) shared objective (Chisholm collected and sent firearm images “at the request of” Jones knowing they would be used in the PPO); and (iii) overt acts (screenshots and email via official account; filing the PPO petition with exhibits). That suffices to attribute state action to a private conspirator at the Rule 12(b)(6) stage.

2) Qualified immunity denied

Applying the First Amendment retaliation test:

Protected activity: Satirical posters and calling a public official a “chump” at a council meeting are classic political speech. The court rejected a “limited public forum” gambit (forum rules govern permissible regulations, not baseline protection) and foreclosed “right to be left alone” and “fighting words” defenses.
Adverse action: Seeking and obtaining a PPO based on “stalking or other threatening behavior” would deter an ordinary person. The PPO’s restrictions (in‑person attendance at meetings, communication with the official, and firearm possession) exceeded any de minimis threshold. The availability of Zoom did not negate injury, nor did Blackwell’s physical limitations.
Causation: The PPO was a foreseeable consequence of the petition; the court’s issuance did not break causation. Temporal proximity and the petition’s own listing of Blackwell’s meeting speech supported an inference of retaliatory motive at the pleading stage.

On clearly established law, the court synthesized Barrett and Rudd:

By 2022, a reasonable official had fair warning that branding protected criticism as “stalking” to trigger punitive consequences—whether in the press (Barrett) or to obtain a protection order (Rudd)—violates the First Amendment.
That a state trial judge initially granted a PPO did not show the law was unclear; the Michigan Court of Appeals reversed, and federal First Amendment precedent controlled. The clearly‑established inquiry is objective; an official’s subjective misunderstanding of stalking law does not confer immunity.
Truthfulness of the raw facts (e.g., Blackwell owned firearms) does not sanitize the retaliatory mislabeling of protected speech as “stalking” or the retaliatory purpose in invoking process. An act proper for a different reason remains actionable if done to punish protected speech.

3) Municipal appeal dismissed

The court lacked jurisdiction to review the City’s Monell dismissal. Municipal defenses are not immunities from suit, and resolution of qualified immunity did not necessarily resolve whether the City had a policy or practice of funding retaliation. Indeed, municipal liability may exist even if individual officials are immune; the issues are not “inextricably intertwined.”

Impact

Retaliatory use of civil process: Public officials now have a fresh, fact‑pattern‑specific reminder that using protective orders to suppress citizen criticism can expose them to personal liability. Ex parte grants do not break causation; officials cannot outsource retaliation to the judiciary and claim insulation.
Private collaborators’ exposure: Private individuals who assist officials—by supplying curated social‑media content, for example—face § 1983 exposure if the complaint plausibly alleges a retaliatory conspiracy. Plaintiffs may avoid complex Lindke disputes by pleading and proving conspiracy.
Meeting participation rights: Officials cannot rely on remote alternatives (Zoom) to argue that bans on in‑person attendance inflict only de minimis injury. Orders restricting attendance and communication materially burden core petition and assembly rights.
Limits of “fighting words” and “right to be left alone”: The opinion reinforces that even crude, boorish attacks on officials are protected absent true threats or the narrowest “fighting words”—far beyond “chump.” Officials must tolerate sharp criticism inherent in public service.
Monell litigation posture: Cities should not expect early interlocutory review of Monell denials alongside officials’ qualified‑immunity appeals. Because municipalities may be liable for ratification of unconstitutional acts even when officers are immune, these claims typically proceed to discovery.
Pleading roadmap: The opinion provides a blueprint for plaintiffs: allege (i) a clear protected act; (ii) swift, process‑based adverse action; (iii) proximate causal linkage notwithstanding court involvement; and (iv) a conspiratorial collaboration to satisfy state action for private helpers.

Complex Concepts Simplified

Qualified immunity: Shields officials unless their conduct violates clearly established constitutional rights that a reasonable official would know. Specific, analogous precedent is often required; here, Barrett and Rudd supplied it.
Under color of state law: For § 1983, a private person acts under color of law if they conspire with a government official to deprive constitutional rights. You need a plan, shared goal, and at least one overt act.
Adverse action/ordinary firmness: An action is adverse if it would deter an ordinary person from speaking. Civil orders restricting movement, speech, or rights (like firearm possession) almost always qualify.
Proximate causation: Uses foreseeability. If a defendant’s act foreseeably leads to a court order harming the plaintiff, the court’s involvement does not automatically break the causal chain.
Limited public forum vs. protected speech: Forum status affects what rules the government may impose prospectively (time, place, manner; content limits consistent with forum purpose). It does not convert core political speech into unprotected speech.
“Fighting words” exception: Extremely narrow—limited to face‑to‑face insults likely to provoke an immediate violent response. Modern doctrine protects far harsher statements than “chump.”
Pendent appellate jurisdiction: An appellate court may sometimes reach non‑immunity issues alongside qualified immunity only if the issues are inextricably intertwined. Monell denials rarely qualify.
Monell ratification: A city can be liable if it authorizes or ratifies unconstitutional conduct—even if individual officers avoid liability on qualified‑immunity grounds—because municipal liability turns on policy, not on the officers’ entitlement to immunity.

Conclusion

The Sixth Circuit’s opinion underscores a straightforward but vital principle: officials cannot weaponize civil protective orders to silence protected criticism. By reaffirming that satirical and insulting speech about public officials is protected; that seeking a PPO to curb that speech is an actionable adverse act; that proximate causation persists despite judicial involvement; and that conspiratorial private collaborators act under color of law, the court provides a clear roadmap for evaluating retaliation claims at the pleading stage. On the jurisdictional front, it reiterates that municipal liability issues ordinarily cannot hitch an interlocutory ride with qualified‑immunity appeals.

The key takeaways are practical: officials should exercise extreme caution before invoking “stalking” labels in response to criticism; private helpers face § 1983 exposure when they knowingly assist retaliation; remote alternatives do not sanitize restrictions on in‑person participation; and municipalities should anticipate Monell discovery even when individuals assert qualified immunity. In a climate where public meetings and social‑media discourse frequently collide, the opinion provides timely guidance against the retaliatory use of process to suppress citizen speech.