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Eighth Circuit wades into dispute over when public officials may “block” their constituents on Twitter

by Matt McGuire | January 29, 2021

This week, the Eighth Circuit held that a constituent who was “blocked” on Twitter by the account of a Missouri state legislator could not maintain a claim against that public official for violation of his First Amendment rights.  In Campbell v. Representative Cheri Reisch, the Eighth Circuit’s holding diverged from the conclusions drawn by two other federal courts of appeals in similar lawsuits, including a prior case out of the Second Circuit involving President Trump’s use of Twitter’s “block” button.

Plaintiff Mike Campbell found himself blocked on Twitter by his Missouri State Representative, Cheri Toalson Reisch, after retweeting a post by another individual criticizing Rep. Reisch.  Upon being blocked by Rep. Reisch, Campbell’s Twitter account was no longer able to access Rep. Reisch’s tweets or communicate with Rep. Reisch’s account.  The district court found that Rep. Reisch had blocked at least 123 other Twitter users.  Campbell claimed that Rep. Reisch operated a virtual public forum via her Twitter account, acted under color of state law in blocking his account, and improperly discriminated against Campbell on the basis of the viewpoint he expressed with his retweet.  The district court in Missouri agreed with Campbell.  It found that the First Amendment prohibited Rep. Reisch from blocking Campbell and other constituents.

This was not the first time a federal court of appeals has tackled the First Amendment implications of a public official’s attempt to use Twitter’s block feature against their constituents.  In Knight First Amendment Institute v. Trump, the Second Circuit held that President Trump’s Twitter account was a designated public forum and that the President’s conduct of blocking individual Twitter users constituted unconstitutional viewpoint discrimination.  (The Trump Administration has filed a petition for certiorari in that case, which remains pending.)

In Knight, the Second Circuit held that even though President Trump created his personal Twitter account in 2009—and became notorious for his personal tweets long before assuming public office—the fact that the President used his personal Twitter account in part to conduct public business converted this account into a designated public forum.  President Trump and his administration referred to the President’s personal tweets as official statements, and on his Twitter account the President announced policies and official decisions to the public, promoted his legislative agenda, and engaged with foreign leaders.  The Second Circuit observed that not every personal social media account operated by a public official should be considered a government account, but President Trump’s clearly qualified.

In another case, Davison v. Randall, the Fourth Circuit confronted a Facebook Page created by a local government official that also “blocked” a constituent.  The Facebook Page in question was created when the official assumed office, was titled “Chair Phyllis J. Randall,” and was used as a “tool of governance” to provide information to constituents and to solicit public input.  This government official also maintained a separate personal Facebook Page.  The Fourth Circuit held this “official” Page that blocked a constituent to be a public forum as well.

The Eighth Circuit majority opinion in Campbell, authored by Judge Arnold, found Rep. Reisch’s Twitter account to be “fundamentally different” from the social media accounts at issue in Trump and Davison.  Although Rep. Reisch used her Twitter account to communicate with her constitutions about new laws, activities of the Missouri Legislature, and her own official activities, the majority characterized her engagement in these types of communications as “sporadic.”  In contrast, the majority emphasized that Rep. Reisch created her account prior to taking office and continued to use the account for personal posts—even if such posts also arguably doubled as campaign literature.  But the majority reasoned that running for public office is private activity, not state action.

The Missouri district court, following the Second Circuit’s analysis in Trump, found that Rep. Reisch’s account bore the “trappings” of an official account, such as being named after her position and district (“@CheriMO44”) and featuring photos of her on the House floor.  But the Eighth Circuit majority found these factors to be “too equivocal,” because according to the majority, anyone would expect a public official to include political content on their personal social media account.  The majority found the Twitter account to be “more akin to a campaign newsletter” than to a public park, such that Rep. Reisch should be allowed to exclude constituents without running afoul of the First Amendment.

In dissent, Judge Kelly argued that Rep. Reisch failed to show that she used her Twitter account primarily for campaign purposes rather than official government business.  The dissent argued that while the Twitter account was created before her government service, Rep. Reisch used her account differently upon becoming a state representative.  Campaign-related tweets ceased, and the tweets that followed concerned public business.  That a public official may tout their achievements as part of a reelection campaign, Judge Kelly argued, should not be dispositive of whether an official’s account is used as a designated public forum.

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