Another Politician Unconstitutionally Censored Constituents on Twitter–Campbell v. Reisch

August 19, 2019 · by Eric Goldman · in Content Regulation

This case involves yet another politician, Missouri Representative Cheri Toalson Reisch (who formerly tweeted @CheriMO44 but the account is currently gone), who blocked constituents on Twitter. I previously blogged this case in February, when the court rejected Rep. Reisch’s motion to dismiss. In April, the court held a bench trial. Last week, the court ruled that Rep. Reisch engaged in unconstitutional censorship.

As usual, there was little question about whether she used the account solely for personal reasons: “During her first 18 months in office, Defendant routinely tweeted or retweeted about her work as a state representative and posted pictures of herself on the House floor or standing with other elected officials.” Yet, she wants Twitter to be a unidirectional method of communication for her to broadcast about her brilliant work as a politician: “Defendant also testified she does not consider Twitter a way in which she communicates with her constituents, or a medium through which Defendant invites communication.” She has blocked at least 124 Twitter users.

The court concludes that Rep. Reisch committed a Section 1983 violation when she blocked one of those users:

“the speech at issue is Plaintiff’s retweet of another representative’s tweet that was critical of a previous tweet made by Defendant, and Plaintiff’s ability to access and interact with other Twitter users relative to Defendant’s Twitter account.”
“Defendant controls the content of her tweets and can, through blocking, prevent other Twitter users like Plaintiff from accessing the interactive space of Defendant’s tweets. Even though Defendant does not control the functions available on Twitter, Defendant has control over the use of those functions, including the block function, which ultimately allows Defendant to curate the interactive space on her account. Consequently, Defendant controls access to the interactive space of her tweets. Moreover, Defendant’s control, under the circumstance of this case, equates to government control.”
Rep. Reisch’s Twitter account was a designated public forum because “Defendant’s [sic] uses her Twitter account to indicate her positions on political issues, and to promote her campaign and legislative agenda. Twitter provides an electronic space through which other Twitter users can seek out and receive information and react to Defendant’s tweets….Although Defendant would perhaps prefer communications with her constituents through telephone or mail, Defendant intentionally created an avenue through which to receive communications from the public.”
“Defendant blocked Plaintiff based on his expressive activity in critique of Defendant. Defendant’s action in blocking Plaintiff is not content-neutral.”
Rep. Reisch acted under color of law because ” the interactive space of Defendant’s Twitter account is controlled by Defendant, in her capacity as a state legislator. As referenced above, Defendant launched her Twitter account alongside her political campaign. Defendant’s handle references her elected district, and her Twitter account links to her campaign webpage. Further, the image associated with Defendant’s Twitter account is a photo of her on the state house floor. Finally, Defendant used the Twitter account to tweet about her work as a public official.”

As a result, “Plaintiff has proven that Defendant violated § 1983, and Plaintiff is entitled to declaratory and injunctive relief.”

Sorry for a bit of lazy blogging today, but this opinion is so straightforward that everything I said about this case last time still applies, so I’ll repeat it here:

I don’t see these cases as a close call. If a politician uses a social media account to discuss anything remotely professionally-related–and almost every personal social media account will eventually cross over–then shutting down the ability of constituents to interact with the account is clearly censorship. Full stop.

As I’ve mentioned before, I think the social media providers could do more here. They should badge politicians’ accounts as official government channels and possibly restrict or eliminate those accounts’ ability to block constituents. Ultimately, maybe they should kick politicians off their social media services altogether to eliminate the inevitable disinformation campaigns that seem to follow politicians.

I don’t know if taxpayers are paying Reisch’s defense for this litigation. If they are, they should be angry that their elected politician is so thin-skinned as to block someone who retweets someone else’s post and their hard-earned tax dollars are being wasted to justify that. Even if Reisch is paying her own defense costs, I can’t imagine respecting any politician who intentionally shuts down a way for constituents to express their opinions. VOTERS: I ENCOURAGE YOU TO VOTE OUT ANYONE SO ILL-EQUIPPED FOR THE JOB OF REPRESENTING “THE PEOPLE.”

One more point: none of these rulings involving blocks by politicians imply that the social media providers are, themselves, state actors subject to the same restrictions as their politician accountholders. If you are making that argument, your bias towards censoring social media providers is showing.

Case citation: Campbell v. Reisch, 2019 WL 3856591 (W.D. Mo. Aug. 16, 2019)

Another Politician Unconstitutionally Censored Constituents on Twitter–Campbell v. Reisch

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