Weaponizing Protective Orders Against Criticism Is Clearly Established First Amendment Retaliation; Private Social-Media Assistance Can Create State Action via Conspiracy

Case: Charles Blackwell v. Steven Chisholm, David Jones, and City of Inkster, Michigan (6th Cir. Nov. 5, 2025) — Not Recommended for Publication

Introduction

This interlocutory appeal from the Eastern District of Michigan arises out of a contentious exchange at the Inkster City Council. Charles Blackwell—a private citizen known for pointed criticism of local officials—attended a council meeting carrying a satirical poster about City Attorney David Jones and called him a “chump.” Within days, Jones petitioned a Michigan court for an ex parte personal protection order (PPO) accusing Blackwell of stalking and threatening behavior. Councilmember Steven Chisholm supplied Jones with screenshots from Blackwell’s private Instagram account depicting lawful firearm ownership; those images were submitted with the petition. A Michigan circuit judge granted the PPO—which restricted Blackwell’s in-person attendance at council meetings, communication with Jones, and firearm possession—before the Michigan Court of Appeals later reversed, holding Blackwell’s speech was constitutionally protected.

Blackwell then brought a 42 U.S.C. § 1983 suit against Jones, Chisholm, and the City of Inkster alleging First Amendment retaliation and municipal liability. The district court denied the defendants’ motions to dismiss; Jones and Chisholm appealed on qualified immunity grounds and Chisholm further argued he did not act “under color of state law.” The City separately sought review of the denial of its municipal liability (Monell) motion to dismiss.

The Sixth Circuit (Judges Readler, Murphy, and Bloomekatz; opinion by Judge Bloomekatz) affirmed the denial of qualified immunity to Jones and Chisholm, holding that the complaint plausibly alleges a violation of clearly established First Amendment rights. The panel also held that Blackwell adequately alleged state action for Chisholm because a private-party conspiracy with a state actor suffices at the pleading stage. It dismissed the City’s appeal for lack of interlocutory appellate jurisdiction, concluding the Monell issues were not inextricably intertwined with the qualified immunity questions.

Summary of the Opinion

First Amendment retaliation claim against Jones and Chisholm survives at the motion-to-dismiss stage:
- Protected speech: Blackwell’s poster and “chump” remark—caustic but nonthreatening criticism of a public official at a public meeting—are core political speech.
- Adverse action: Petitioning for a PPO that curtailed in-person council attendance, communication with the City Attorney, and firearm possession is more than de minimis injury for a private citizen.
- Causation: Temporal proximity and the petition’s express reliance on Blackwell’s meeting speech plausibly allege retaliatory motive and proximate cause; issuance of the PPO by the court does not break the causal chain.
Clearly established law: By July 2022 it was clearly established that public officials cannot retaliate against citizen critics by characterizing protected speech as stalking—particularly via accusations made to obtain restraining orders (Barrett v. Harrington; Rudd v. City of Norton Shores).
State action for Chisholm: Even if Chisholm’s Instagram activity were private, allegations that he conspired with Jones (a state actor) to retaliate suffice to plead action under color of law at this stage (Adickes; Hooks; Rudd). The court thus did not need to decide whether Chisholm’s social-media use satisfied the Lindke v. Freed state-action test.
Municipal liability appeal dismissed: The panel lacked pendent appellate jurisdiction over Inkster’s Monell appeal because its resolution was not inextricably intertwined with the qualified immunity issue; municipalities have no interlocutory right to appeal denial of a motion to dismiss.

Factual and Procedural Background

Blackwell regularly attended Inkster City Council meetings (in person and via Zoom) and frequently criticized City officials, including City Attorney David Jones and Councilmember Steven Chisholm. On July 18, 2022, Blackwell brought a satirical poster to a council meeting labeled “FICTION,” depicting the Mayor next to Jones’s wife in bed, with the caption “I already know David Jones is A Bad Inkster City Attorney,” and called Jones a “chump” as he walked by.

The next day, Chisholm, who followed Blackwell’s private Instagram account, took screenshots of photos showing Blackwell’s lawful gun ownership and emailed them to Jones from his government email. Two days later, Jones petitioned for an ex parte PPO alleging “stalking or other threatening behavior,” citing Blackwell’s meeting conduct and other public criticisms; he attached the Instagram screenshots. A state trial judge granted a one-year PPO forbidding Blackwell from in-person contact with Jones (including at work), any communication with Jones, and firearm possession—preventing in-person attendance at council meetings. Following an evidentiary hearing, the judge denied Blackwell’s motion to terminate the PPO, reasoning that Blackwell’s “caricatures” constituted stalking and that Jones had a “right to be left alone.” The Michigan Court of Appeals reversed, holding Blackwell’s speech was protected commentary on public officials and public matters; the Michigan Supreme Court denied leave.

Blackwell then filed this § 1983 action alleging that Jones and Chisholm retaliated against him for protected speech by seeking the PPO and that Inkster had a policy/practice of funding or ratifying such retaliation. The district court denied the defendants’ motions to dismiss; Jones and Chisholm asserted qualified immunity, and Chisholm disputed state action; the City’s Monell appeal followed.

Analysis

Precedents Cited and How They Shaped the Decision

State action via conspiracy

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970): Private parties who conspire with state actors to deprive constitutional rights act under color of law for § 1983 purposes. This principle allowed the panel to treat Chisholm as a state actor at the pleading stage if a conspiracy with Jones was plausibly alleged.
Hooks v. Hooks, 771 F.2d 935 (6th Cir. 1985): Sets out the conspiracy elements—single plan, shared objective, and an overt act. The complaint alleged all three: (1) a plan to retaliate for Blackwell’s speech by seeking a PPO; (2) Chisholm’s shared objective (screenshots “at the request” of Jones to be used in the PPO); and (3) overt acts (Chisholm’s screening and emailing; Jones’s filing of the petition).
Rudd v. City of Norton Shores, 977 F.3d 503 (6th Cir. 2020): A properly pled § 1983 conspiracy suffices to establish state action by private actors at the motion-to-dismiss stage. The panel relied on Rudd to avoid a fact-intensive “under color” inquiry under Lindke.
Lindke v. Freed, 144 S. Ct. 756 (2024): Addresses when public officials’ social-media activity is state action. The panel expressly declined to resolve whether Chisholm’s Instagram activity satisfied Lindke’s test because the conspiracy theory independently supplied state action for pleading purposes.

Protected political speech and its limits

Rosenblatt v. Baer, 383 U.S. 75 (1966) and N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964): Cornerstone cases affirming robust protection for criticism of public officials, even when “vehement” and “caustic.”
Texas v. Johnson, 491 U.S. 397 (1989): Offensive speech is protected; offensiveness alone does not remove First Amendment protection.
Greene v. Barber, 310 F.3d 889 (6th Cir. 2002) and Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022): Define the narrow “fighting words” exception; insults far more profane than “chump” remain protected, undermining any attempt to recast Blackwell’s comment as unprotected.
Bible Believers v. Wayne County, 805 F.3d 228 (6th Cir. 2015) (en banc): Both spoken words and words on signs/posters are fully protected speech.
Youkhanna v. City of Sterling Heights, 934 F.3d 508 (6th Cir. 2019): Forum classification affects permissible regulations, not whether speech is protected. The panel rejected Chisholm’s reliance on “limited public forum” to diminish protection.
Houston Community College System v. Wilson, 142 S. Ct. 1253 (2022): Public officials must tolerate a degree of criticism; no “right to be left alone” from political speech.

Adverse action and causation in retaliation claims

Bell v. Johnson, 308 F.3d 594 (6th Cir. 2002); Hill v. Lappin, 630 F.3d 468 (6th Cir. 2010); Fritz v. Charter Twp. of Comstock, 592 F.3d 718 (6th Cir. 2010): Define the “ordinary firmness” test and a low threshold for private citizens; only de minimis harms are excluded at pleading stages.
King v. Zamiara, 680 F.3d 686 (6th Cir. 2012): Temporal proximity can support an inference of retaliatory motive.
McKinley v. City of Mansfield, 404 F.3d 418 (6th Cir. 2005); Powers v. Hamilton Cnty. Pub. Def. Comm'n, 501 F.3d 592 (6th Cir. 2007): Proximate cause in § 1983 is a matter of foreseeability; an intervening judicial order does not necessarily break causation when the official’s action foreseeably precipitated it.
Rudd, 977 F.3d at 515; Nieves v. Bartlett, 139 S. Ct. 1715 (2019); Lemaster v. Lawrence County, 65 F.4th 302 (6th Cir. 2023): But-for causation standards and burdens in First Amendment retaliation—used to assess whether retaliatory animus was a substantial factor.

Clearly established law and fair warning

Anderson v. Creighton, 483 U.S. 635 (1987); Ashcroft v. al-Kidd, 563 U.S. 731 (2011); District of Columbia v. Wesby, 583 U.S. 48 (2018): Emphasize specificity in the “clearly established” inquiry; officers need “fair and clear warning.”
Barrett v. Harrington, 130 F.3d 246 (6th Cir. 1997): A seminal Sixth Circuit case denying qualified immunity to a judge who retaliated against a critic by accusing him of stalking—establishing that falsely characterizing protected criticism as “stalking” to chill speech violates clearly established First Amendment rights.
Rudd, 977 F.3d at 515: Obtaining a protection order by falsely accusing a critic of stalking is adverse action that can chill speech, reinforcing Barrett’s principle in the PPO context.
Pleasant View Baptist Church v. Beshear, 78 F.4th 286 (6th Cir. 2023); Heeter v. Bowers, 99 F.4th 900 (6th Cir. 2024): Explain how to assess specificity and fair warning in First Amendment contexts.

Jurisdiction and appellate scope

Mitchell v. Forsyth, 472 U.S. 511 (1985); Swint v. Chambers Cnty. Comm’n, 514 U.S. 35 (1995): Qualified immunity denials are appealable; municipal defenses are not immunities and generally are not immediately appealable.
Crockett v. Cumberland College, 316 F.3d 571 (6th Cir. 2003); Summers v. Leis, 368 F.3d 881 (6th Cir. 2004): Confirm no interlocutory appeal for municipal liability denials.
Lane v. City of LaFollette, 490 F.3d 410 (6th Cir. 2007); Mattox v. City of Forest Park, 183 F.3d 515 (6th Cir. 1999): Pendent appellate jurisdiction applies only when issues are inextricably intertwined; here, the Monell question was not.
Kalvitz v. City of Cleveland, 763 F. App’x 490 (6th Cir. 2019); Neuens v. City of Columbus, 303 F.3d 667 (6th Cir. 2002): Once a qualified immunity appeal is properly before the court, pendent jurisdiction allows review of the “under color of law” element because it is part of the § 1983 claim tied to immunity.

Legal Reasoning

1) State action: Conspiracy pleaded; no need to reach Lindke

Chisholm argued he was not acting under color of law when he captured and sent Instagram screenshots. The panel avoided a potentially complex application of Lindke v. Freed by holding that a private actor who conspires with a state actor to violate constitutional rights acts “under color of state law.” The complaint plausibly alleged (i) a single plan—retaliation in response to the council-meeting poster/remark—(ii) a shared objective—Chisholm’s cooperation in gathering firearm images “at the request of” Jones for use in a PPO—and (iii) overt acts—Chisholm emailing the screenshots from his government account and Jones filing the petition attaching them. That sufficed at the pleading stage to attribute state action to Chisholm.

2) First Amendment retaliation: Plausible allegations

Protected speech: Blackwell’s poster and “chump” epithet were nonthreatening criticism of a public official at a public meeting—core political speech. The court rejected the “right to be left alone” theory and any suggestion that the speech was “fighting words” (far harsher insults have been held protected). Forum classification did not change whether the content was protected.
Adverse action: Petitioning for a PPO that limited physical attendance at council meetings, foreclosed any communication with the City Attorney, and restricted firearms possession would deter an ordinary person. The Zoom alternative did not render the injury de minimis, particularly because the record did not establish Zoom’s consistent availability and because Blackwell did attend in person on the day at issue.
Causation:
- Proximate cause: The harms were the foreseeable and intended result of the PPO petition; an intervening court order did not break causation.
- Retaliatory motive: Temporal proximity (a matter of days) and the petition’s express reliance on the meeting speech plausibly alleged but-for retaliation at this stage. The defendants may later rebut with alternative motives after discovery, but not at Rule 12(b)(6).

3) Clearly established law: Fair warning existed by July 2022

The Sixth Circuit identified specific precedent—especially Barrett and Rudd—providing fair and clear warning that public officials may not retaliate against critics by branding their protected speech as “stalking,” whether in media statements (Barrett) or in petitions to obtain restraining orders (Rudd). The court rejected several counterarguments:

“Right to be left alone”: Not a basis to abridge core political speech directed at public officials.
“Fighting words”: The doctrine is narrow and inapplicable; calling someone a “chump” is protected.
Conflicting state-court decisions: A single trial judge’s contrary view (later reversed) does not defeat clearly established federal First Amendment principles.
“Truthfulness” of underlying facts: Even if the factual statements were accurate (e.g., Blackwell owned guns), the unconstitutional act was the retaliatory mislabeling of protected speech as stalking; an act taken for an improper retaliatory reason is actionable even if it might have been proper for other reasons (Bloch v. Ribar).

4) Municipal liability appeal: No pendent appellate jurisdiction

The panel dismissed the City’s interlocutory appeal for lack of jurisdiction. Unlike qualified immunity, municipal defenses are not immunities from suit and carry no immediate appeal. Nor was the Monell question “inextricably intertwined” with the qualified immunity issue. Even if Jones and Chisholm eventually obtain qualified immunity, Inkster could still be liable if it ratified unconstitutional acts not yet clearly established (Baker v. Union Twp.), so resolving one would not necessarily resolve the other.

Impact and Practical Implications

For public officials and municipal counsel

PPOs are not tools to silence critics: Seeking protective orders based on nonthreatening, public criticism of official performance risks § 1983 liability for retaliation. That risk is clearly established in the Sixth Circuit.
“Right to be left alone” does not shield officials: Public service entails exposure to caustic commentary. Attempting to reframe criticism as stalking will not pass constitutional muster absent true threats, harassment outside protected contexts, or unprotected categories of speech.
Social media involvement can create exposure: Even if an official’s social-media conduct appears private, assisting a retaliatory plan (e.g., supplying screenshots) can create state-actor liability via conspiracy. Training should address both direct and indirect participation in actions that might chill speech.
Intervening court orders do not cleanse retaliation: Officials cannot rely on a judge’s order to avoid causation; foreseeable judicial action resulting from the official’s petition can leave the official liable.
Monell risk remains even if individuals secure qualified immunity: Cities should scrutinize policies or payment practices that could be construed as ratifying or funding retaliatory conduct. Billing time for retaliation-related petitions can become evidence of policy/practice.

For plaintiffs and civil rights advocates

Pleading strategy: Alleging a short timeline between protected speech and adverse action, citing the official’s own documents that reference the protected speech, and detailing any cooperative acts between officials (emails, requests, shared objectives) are powerful at Rule 12(b)(6).
Conspiracy as a state-action path: Where uncertainty exists under Lindke (social-media state action), pleading a conspiracy with a known state actor can satisfy the “under color” requirement.
Adverse action is contextual: Restrictions on in-person participation, communication bans, and collateral firearm prohibitions can collectively exceed the de minimis threshold for ordinary citizens.

Likely doctrinal ripple effects

Misuse of harassment/stalking statutes: Expect more rigorous scrutiny where officials invoke stalking/harassment frameworks to curb civic criticism, especially in ex parte contexts.
Clarifying “clearly established” law in retaliation: The panel’s reliance on Barrett and Rudd refines the specificity required: labeling nonthreatening criticism as “stalking,” including in PPO petitions, is clearly prohibited retaliation.
Lindke detour: Courts may increasingly resolve social-media “state action” disputes at the pleading stage through the conspiracy route when a direct Lindke analysis is unnecessary, reserving fact-intensive Lindke inquiries for later stages.

Complex Concepts, Simplified

Qualified immunity: Protects officials from suit unless they violate a constitutional right that was clearly established at the time. At the motion-to-dismiss stage, the question is whether the complaint plausibly alleges such a violation.
“Under color of state law”: A § 1983 defendant must be acting with governmental authority (or as a private party conspiring with a state actor) when committing the constitutional violation. A conspiracy with a state actor can satisfy this requirement.
First Amendment retaliation (three elements):
- Protected activity (e.g., criticizing a public official).
- Adverse action that would deter an ordinary person (e.g., seeking a PPO restricting speech or attendance).
- Causation (the adverse action was motivated by and proximately caused by the protected speech).
Adverse action “ordinary firmness” test: Would the action deter a person of ordinary firmness from speaking? Private citizens have a lower threshold than, for example, public employees.
Proximate cause vs. intervening acts: Proximate cause asks whether the harm was a foreseeable outcome of the defendant’s conduct. A judge’s order does not automatically break causation if it was the foreseeable result of the official’s petition.
“Fighting words” exception: A narrow category of face-to-face insults likely to provoke immediate violence; courts construe it narrowly. Mere insults—even crude ones—typically remain protected.
Limited public forum: Government can impose reasonable, viewpoint-neutral restrictions tailored to the forum’s purpose. But the forum label does not convert protected speech into unprotected speech.
Monell (municipal liability): A municipality is liable under § 1983 only if a policy, practice, or custom caused the constitutional violation (including ratification). Municipalities do not get qualified immunity and cannot take interlocutory appeals of denials at the pleading stage.
Pendent appellate jurisdiction: Appellate courts may sometimes decide additional issues in an interlocutory appeal if they are inextricably intertwined with the appealable issue. Here, the City’s Monell issues were not intertwined with qualified immunity.

Conclusion

This decision delivers a clear message to public officials in the Sixth Circuit: turning a citizen’s nonthreatening criticism into a “stalking” narrative to procure a protective order is classic First Amendment retaliation, and that prohibition was clearly established well before July 2022. The panel’s reliance on Barrett and Rudd gives precise notice—mischaracterizing protected speech as “stalking,” including in court filings, risks § 1983 liability. The opinion also underscores that private collaboration (such as supplying social-media screenshots) can be actionable via a conspiracy with a state actor, obviating the need to resolve complex Lindke questions at the pleadings stage.

On jurisdiction, the court draws a firm line: municipalities cannot piggyback a Monell appeal onto an interlocutory qualified immunity appeal absent an inextricable nexus—one not present here. Practically, the case counsels caution in deploying civil protective orders against vocal critics and in municipal practices that might be deemed ratification or funding of retaliatory conduct. The key takeaway is both simple and enduring: robust debate about the performance of public officials sits at the center of the First Amendment, and using legal process to punish such speech is a constitutional wrong that officials should already know to avoid.