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Campbell v. Reisch: Blocking Constituents on Twitter

Reports First Amendment

Mike Campbell v. Representative Cheri Toalson Reisch, No. 19-2994 (8th Cir. Jan. 27, 2021). Complaint hosted by CourtListener. District Court opinion hosted by Casetext.

On January 27, 2021, the Eighth Circuit Court of Appeals issued its opinion in Campbell v. Reisch. The court held that Cheri Toalson Reisch, a Republican state representative for Missouri’s 44th District, is entitled to block a constituent on Twitter without violating her constituent’s First Amendment rights.

On June 23, 2018, Mike Campbell retweeted another Missouri state representative’s comment on one of Rep. Reisch’s posts. Rep. Reisch then blocked Campbell from accessing or commenting on her Twitter account. Campbell, a registered voter in Rep. Reisch’s district, filed suit. His complaint brought action under 42 U.S.C. §1983 against Rep. Reisch, alleging that she violated his First Amendment rights by blocking him on her Twitter account. Campbell sought declaratory and injunctive relief.

The district court found for Campbell. Judge Wimes of the Western District of Missouri held that Campbell was entitled to relief under §1983. A §1983 plaintiff must demonstrate that: 1) the plaintiff was “deprived of a right secured by the Constitution or laws of the United States” and 2) that “the alleged deprivation was committed under color of state law.” Judge Wimes ruled that Campbell’s retweet was protected speech and that Rep. Reisch’s Twitter page constituted a designated public forum, satisfying the first element. Judge Wimes found that Rep. Reisch’s deprivation occurred under color of state law. Therefore, the court entered judgment for Campbell.

The Eighth Circuit reversed and remanded. Writing for a 2-1 majority, Judge Arnold held that Rep. Reisch’s actions were unofficial conduct and represented a private deprivation of speech unprotected by the First Amendment. The majority found that Rep. Reisch’s Twitter account was created before she began running for office and that her use of the account resembled a campaign newsletter rather than an “organ of official business.” Therefore, she had the prerogative to select her audience as she saw fit. Judge Kelly filed a dissenting opinion arguing that the record showed that Rep. Reisch used her account for official duties and violated the First Amendment’s prohibition on viewpoint discrimination.

The Knight First Amendment Institute at Columbia University and the Electronic Frontier Foundation both filed amicus briefs in support of Campbell. The Knight Institute’s brief asked the Eighth Circuit to follow the Second and Fourth Circuits in applying existing state action and public forum doctrine. The Electronic Frontier Foundation’s brief argued that when the government chooses to open a channel to the public, it has no right to engage in viewpoint discrimination. It further noted that blocking constituents violates their First Amendment rights to receive information from the government that is otherwise distributed to the public.

The Eighth Circuit majority and dissent noted similar precedent on the issue but diverged in applying it to the facts. In its 2019 ruling in Knight First Amendment Institute at Columbia University v. Trump , the Second Circuit held that President Trump’s Twitter page was used for official purposes and was therefore not allowed to exclude persons based on viewpoint. Similarly, in Davison v. Randall , the Fourth Circuit affirmed a lower court’s ruling that the chair of a local Board of Supervisors violated her constituent’s First Amendment rights by banning him from her Facebook page. The majority distinguished Trump and Davison by noting that Rep. Reisch conducted little official business on her Twitter account. The dissent, in contrast, relied on sister circuit precedent to argue that Rep. Reisch’s conduct did constitute viewpoint discrimination under color of law.

Campbell v. Reisch opens up a federal circuit court split over whether elected officials may ban constituents from their social media pages without violating their constituents’ First Amendment rights. The fact-intensive inquiry conducted by the Eighth Circuit suggests that practitioners should argue extensively from the record in addition to citing controlling precedent.

Eric Xu is a 1L from Harvard Law School.