8th Circuit says state rep can block critic on Twitter

Scott Lauck//January 29, 2021

The 8th U.S. Circuit Court of Appeals ruled Jan. 27 that a Missouri state representative didn’t violate the First Amendment by blocking a constituent on Twitter.

In a 2-1 ruling, the court said state Rep. Cheri Toalson Reisch, R-Hallsville, used the account “overwhelmingly for campaign purposes,” making it akin to a campaign newsletter.

“While Reisch’s posts open up an interactive space where Twitter users may speak, that doesn’t mean that Reisch cannot control who gets to speak or what gets posted,” Judge Morris S. Arnold wrote for the panel’s majority. “It’s her page to manage as she likes.” Judge Steven M. Colloton concurred.

But Judge Jane Kelly wrote in a dissent that Twitter’s reply feature was more like the public-comment portion of a town hall meeting. Just as officials cannot bar people in such settings from participating based on their viewpoints, “Reisch cannot block users from her Twitter account because she dislikes their opinions. But this is precisely what Reisch did.”

Lowell D. Pearson of Husch Blackwell, an attorney for Reisch, said he was glad the court had focused on the nature of the account.

“If the court had ruled the other way, my concern would be that non-incumbents can block and message in any way they want, but incumbents are constrained because they’re already in office,” he said. “I think this case is important in maintaining a level playing field in campaigns.”

J. Andrew Hirth of TGH Litigation, who represented plaintiff Mike Campbell, a fellow attorney in Columbia, said incumbents have plenty of ways to get their message to the public and that, as state officials, they have to accept some limitations on their actions. He said the ruling allows officials who blend campaign material with their official actions to block critics with impunity.

“I think the majority opinion is a roadmap on how to avoid the First Amendment,” he said. Hirth added that he plans to ask the full 8th Circuit to rehear the case.

Reisch opened her since-deleted
@CheriMO44 account when she ran for the 44th District House seat in 2015. In 2018, she tweeted an accusation that a political opponent had put her hands behind her back during the Pledge of Allegiance. A Democratic state representative, Kip Kendrick, commented on Reisch’s tweet, calling the allegation a “low blow.” Campbell retweeted Kendrick’s response.

Campbell subsequently found he had been blocked from Reisch’s Twitter account, leaving him unable to comment on her Twitter page. According to the opinion, the representative also had blocked at least 123 other Twitter users.

Campbell sued in the U.S. District Court for the Western District of Missouri, and in 2019 Judge Brian C. Wimes issued a permanent injunction barring Reisch from blocking Twitter users based on the content of their speech.

The case is one of just a handful in the country to explore the First Amendment’s application to political officials who use social media.

In 2019, the 2nd Circuit ruled that then-President Donald Trump couldn’t block critics from his Twitter account, which (prior to Twitter’s decision earlier this year to ban Trump from the platform entirely) was run partially by the White House.

The ruling, Knight First Amendment Institute at Columbia University v. Trump, said the First Amendment “does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.”

That ruling also noted that “not every social media account operated by a public official is a government account.” The 8th Circuit held that Reisch had “the kind of unofficial account that the Trump court envisioned,” as she opened it when she ran for office and continued to use it to tout her accomplishments. Because Reisch was not acting under color of law, there was no First Amendment violation.

“We don’t intimate that the essential character of a Twitter account is fixed forever,” Arnold wrote. “But the mere fact of Reisch’s election did not magically alter the account’s character, nor did it evolve into something different. A private account can turn into a governmental one if it becomes an organ of official business, but that is not what happened here.”

Reisch said she was grateful for the court’s decision.

“My door is always open to my Constituents,” she wrote in an emailed statement. “Although I no longer use Twitter, my account was used for personal and campaign speech and not for official government business.”

The case is Campbell v. Reisch, 19-2994.