Politician Can Block Constituents at Twitter–If It’s a “Campaign” Account–Campbell v. Reisch

January 28, 2021 · by · in Content Regulation, Derivative Liability

This is another case challenging an elected official’s blocking of a constituent’s Twitter account on First Amendment grounds. It’s a 2-1 Eighth Circuit ruling that appears to distance itself from the approach of the Second and Fourth Circuits. As Eric notes, plaintiff may seek en banc review and perhaps take it further.

(The Supreme Court is considering the government’s request to review the cases against ex-President Trump for blocking constituents on Twitter. Given Twitter’s ban of Trump, the Court will likely reject that petition.)

Eric blogged the district court’s denial of the plaintiff’s motion to dismiss and the ruling in plaintiff’s favor following the bench trial:

The majority: focuses on something the district court did not appear to view as a close question: whether the elected official, Missouri State Rep Cheri Reisch, was acting under color of state law. This depends on whether the account in question was an official account. Reisch argued that her blocking power was conferred by Twitter and not some officially endorsed action, so it was not state action. Plaintiff (Mike) Campbell argued that the real question is whether the account is an “official” one. The court says that, even if Campbell is right, the record does not support the conclusion that Reisch’s account was an official one.

The account is now deleted. [Mootness alert!] Reisch started the account before being elected and used it to announce her candidacy. However, following her election into office, she sent a plethora of tweets that discussed her work on behalf of her constituents. The majority says that, following her election, Reisch merely used the account to promote herself as a politician—to set herself up for reelection. This is not sufficient to transform her account into an official one:

We don’t intimate that the essential character of a Twitter account is fixed forever. 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. The overall theme of Reisch’s tweets—that’s she’s the right person for the job—largely remained the same after her electoral victory. Her messages frequently harkened back to promises she made on the campaign trail, and she touted her success in fulfilling those promises and in her performance as a legislator, often with the same or similar hashtags as the ones she used while a candidate. So it seems to us that Reisch used the account in the main to promote herself and position herself for more electoral success down the road—a conclusion supported by the campaign-related tweet that led to this litigation. We acknowledge that she occasionally used the account to provide updates on where certain bills were in the legislative process or the effect certain recently enacted laws had had on the state. But tweets like these are fully consistent with Reisch using the account to tout her record because they show voters that she was actively advancing her legislative agenda and fulfilling campaign promises. They also revealed where she stood on relevant political issues. In sum, her post-election use of the account is too similar to her pre-election use to suggest that it had morphed into something altogether different.

The majority says that Reisch’s account “is the kind of unofficial account that the [Second Circuit] envisioned [in Knight Foundation v. Trump].” In the majority’s words, Reisch’s “sporadic engagement [on Twitter as an elected official] does not overshadow what we believe was quite clearly an effort to emphasize her suitability for public office.”

The dissent: points out that Reisch invoked her position as an elected official on Twitter. Her bio reflected her official position. Her profile photo was one taken in the Missouri House Chamber. Her banner image was “a large photo of her swearing-in ceremony.” It may be that, as the majority points out, Reisch merely tried to demonstrate to voters that she fulfilled her campaign promises. But the dissent notes this is the very work of an elected official.

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In a prior blog post, Eric’s comments on the question of whether the account is personal or official are on point:

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.

Unfortunately, even cases that are favorable to plaintiffs employ a fact-based (in the court’s word “holistic”) test. They fail to account for the boost in engagement an official actor gets by virtue of being an official actor. An interesting question would have been whether campaign events and press listed the account in question.

Twitter should provide a solution here by: (1) designating which are “official accounts”; (2) somehow accounting for the transition of followers between accounts when someone is elected to office; and (3) either preventing the ability of official accounts to block followers or flagging prominently when this occurs.

It’s ironic that Reisch spent taxpayer money after blocking 123 Twitter users who disagreed with Reisch’s tweet questioning her opponent’s patriotism. Doubly ironic that Reisch blocked people in response to her own tweet questioning her opponent’s patriotism because her opponent supposedly showed insufficient respect for the flag during the pledge of allegiance at a local event. (Cf. West Virginia v. Barnette.)

The majority and dissent debate whether Reisch’s tweets were intended to promote her future candidacy or her ongoing work in office. The dissent has the more persuasive view that these are both one and the same. I’m surprised neither opinion discussed the propriety of this practice. Sure, her account could have been a “campaign newsletter,” but what’s she doing spending her valuable work hours, running an account bearing the trappings of public office, and undoubtedly spending some public resources on a “campaign newsletter”??

It’s dispiriting to see politicians so thin-skinned that they have to block constituents on Twitter. That should be grounds for immediate disqualification from office.

[NB: plaintiff in this case is @attorneymikec]

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Eric’s Comments: This ruling makes sense only on the surface. We have embraced a fiction that politicians in office can segregate their time between official work and reelection work. As a result, they can engage in reelection or other political campaigning work that we won’t consider to be taxpayer-funded and governed by the state action doctrine. Since we’ve accepted that distinction, it makes sense that a politician could have an official social media account that is state action and a separate campaign social media account that isn’t state action. (Indeed, there could be a third category of accounts that are purely personal and have no political or campaign relevance).

However, there is no principled way to distinguish between a politician’s official social media account and a separate campaign account. They both have the same objective–to raise public awareness of the politician’s great work on behalf of the politician’s constituents–and (as Venkat mentions) the same effect of boosting an incumbent over challengers. Plus, as the dissent indicates, this politician did a crappy job of actually managing the account as only campaign-focused; but I don’t know if a politician could really better manage a campaign account.

I hate wasteful litigation, and lawsuits over politicians’ social media account blocks feel like overkill responses to relatively minor transgressions, even if they are fully supported by important Constitutionally protected free speech concerns. This ruling will raise the costs of any such litigation (as indicated by the West v. Shea case discussed below) because this case gives the parties more topics to litigate.

Meanwhile, I don’t expect voters will punish censorial politicians at the ballot box; votes are too blunt an instrument to pick up a politician’s abusive use of social media blocks. However, I agree 100% with Venkat that voters should indeed vote out any politicians who are so thin-skinned that they block their constituents on social media.

Given the unlikely success of other solutions, politicians’ censorship of constituents seems like a problem that social media services need to fix. I like Venkat’s suggestions for the steps social media services should take. However, I’m not sure they go far enough. I prefer the more drastic remedy of categorically shutting down social media accounts for politicians–and if this ruling sticks, for candidates too. (Irina Raicu and I made a similar argument about political advertising). A politician’s social media account will gravitate towards propaganda and soundbites, neither of which advance our discourse. Social media is the wrong venue for those kinds of political activity. FWIW, Facebook (to its rare credit) is already moving in that direction.

I also think this case is a good candidate for en banc review by the Eighth Circuit. I hope the plaintiff requests it. This case also sets up a possible circuit split which could position this issue for Supreme Court review.

Case citation: Campbell v. Reisch, 2021 WL 261992 (8th Cir. Jan 27, 2021)

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BONUS: West v. Shea (C.D. Cal.), from November 2020, just showed up in Eric’s Westlaw alerts. In that case, the Mayor of Irvine blocked users who responded to her Facebook post taking issue with the BLM movement. The court denied a motion to dismiss. That prompted a settlement, with the city publicly condemning the Mayor’s actions:

The City of Irvine holds itself to high standards. It encourages robust discussion of important public issues, and it disapproves of actions that silence the voices of those with opposing points of view. Putting aside the question of what is “legal,” the City believes that former Mayor Shea’s actions did not meet the City’s standards and expectations.

To the point raised by the Campbell v. Reisch case about distinguishing between different social media accounts, the mayor actually had three separate accounts: (1) the mayor’s official (?) Facebook profile with 21 friends, (2) a Facebook page for the mayor with 431 followers, and (3) what may have been Shea’s personal profile that had “some indications of being personal and some indications of being official.” It’s the latter account that formed the basis of the lawsuit, and it had 1,750 followers and 5,000 friends.

In light of Campbell v. Reisch, which of these accounts could Shea now claim were just campaign accounts? What facts would be dispositive in either direction? How much more in litigation costs will both parties incur to resolve those questions?

The City’s settlement statement notes that the city spent around $120,000 on defense and settlement costs. If I were an Irvine voter, I would be heated about my tax dollars being used to defend the mayor’s censorship. But this is also a reminder that a few seconds of thoughtless social media blocking can lead to quite expensive litigation.

The mayor invoked Section 230(c)(2)(A) to say that she was filtering her constituents in good faith. The court responds:

Defendant intentionally blocked Plaintiff from a Profile where she interacted with her constituents as mayor solely because Plaintiff expressed a viewpoint she disagreed with. To grant Defendant’s motion to dismiss based on CDA immunity, then, the Court would have to believe that Congress intended CDA immunity to immunize viewpoint discrimination. The Court is not so persuaded.

This is garbled. What the court is trying to say is that Section 230, as a statute, cannot override Constitutional free speech protections, including First Amendment restrictions on state action that discriminates based on viewpoints. This raises the interesting, and undertheorized, question about when, if ever, government state actors can benefit from Section 230 when engaging in account termination, content blocking, and other forms of content suppression that might raise First Amendment concerns. This issue came up in the Kathleen R. v. Livermore and Mainstream Loudoun cases from 20 years ago. The Mainstream Loudoun case said flatly that “§ 230 was not enacted to insulate government regulation of Internet speech from judicial review,” but the Kathleen R. case nevertheless applied Section 230(c)(2)(A) to a public library. The government’s use of Section 230 would make a good student paper topic. Also consider this post on what life would look like if the government tried to operate a search engine.

Bonus case citation: West v. Shea, 2020 WL 8269540 (C.D. Cal. Nov. 12, 2020)

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