Defamation / Reputation, Hate Speech, Political Expression
Awan v. Levant
Closed Contracts Expression
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The United States Court of Appeal for the Eighth Circuit ruled that a Missouri State Representative had not violated one of her constituent’s First Amendment rights when she blocked him from her Twitter account. The State Representative had blocked the constituent after he retweeted criticism of her position on a matter of public interest. The constituent approached the District Court for the Western District of Missouri, seeking a declaration and an injunction on the grounds that the State Representative was liable for the infringement of his rights because she had been acting “under the color of state law” (that is, that she was acting in an official capacity) when she blocked him. The District Court had held that the State Representative’s Twitter account was an official government account and that she had violated the constituent’s rights. The Court of Appeal overturned the District Court’s decision, holding that the Twitter account was not an official, government account as its focus was on the State Representative’s broad campaign for public office and that she was not, therefore, acting “under the color of state law” when she blocked her constituent. The Court noted that, in fact, the State Representative’s First Amendment rights “to craft her campaign materials necessarily trumps [the constituent’s] desire to convey a message on her Twitter page that she does not wish to convey” [p. 9].
On June 23, 2018 Cheri Reisch, a State Representative for a district of the Missouri House of Representatives in the United States, attended a Missouri Farm Bureau event and tweeted “Sad my opponent put her hands behind her back during the Pledge” about Maren Jones, a political opponent who also attended the event. The following day Kip Kendrick, another Missouri representative, responded to Reisch’s tweet, tweeting “Maren’s father was a Lieutenant in the Army. Two of her brothers served in the military. I don’t question [Maren’s] patriotism. That’s a low blow and unacceptable from a member of the Boone County delegation.” Mike Campbell, a registered voter in Reisch’s district, retweeted Kendrick’s tweet. Following the retweet, Reisch blocked Campbell on Twitter.
After he was blocked, Campbell brought a claim before the District Court for the Western District of Missouri against Reisch under 42 U.S.C. §1983, arguing that her blocking him violated his free speech rights under the First Amendment. This section “provides a remedy against any person who, under color of state law, deprives another rights protected by the Constitution” [p. 7, District Court Judgment]. The First Amendment to the US Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”.
The District Court noted that, to succeed with a claim under section 1983, a plaintiff must demonstrate that they were “deprived of a right secured by the Constitution or laws of the United States”; and “the alleged deprivation was committed under color of state law” [p. 7-8, District Court Judgment]. The “under color of state law” requirement limits liability to conduct by a government official in their official capacity, and any private conduct by a government official is excluded, “no matter how discriminatory or wrongful” [p. 8, District Court Judgment].
In respect of whether Campbell was deprived of a right protected by the Constitution or US laws, Reisch had argued that her Twitter account was not public property. The Court stated that there were three considerations in determining this leg of the inquiry: whether the plaintiff’s speech was protected; whether the “place” where the speech took place “is susceptible to forum analysis”; and then, if the place is susceptible to forum analysis, the type of forum [p. 8, District Court Judgment]. The Court quoted Cornelius v. NAACP Legal Def. & Educ. Fund Inc 473 U.S. 788 and stated that forum analysis applies when “a speaker seeks ‘access to public property, or private property dedicated to public use’” [p. 10, District Court Judgment], and that property is public when access is government controlled. The Court noted that “[d]etermination of the type of forum is important because the type of forum corresponds with the limits on the government’s power to regulate speech without running afoul of the First Amendment” [p. 8, District Court Judgment]. With reference to the cases of Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 565 (S.D.N.Y. 2018) (Knight I) and Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 237 (2d Cir. 2019) (Knight II), the Court held that Campbell’s speech was protected. It also held that – even though Twitter was a private company – Reisch did control the use of the functions on Twitter and so the “interactive space” of her tweets was “sufficiently controlled by [her] in her capacity as a state legislator” and was therefore government controlled and was therefore subject to forum analysis [p. 12, District Court Judgment]. Lastly, the Court held that the interactive space constituted a designated public forum. The Court noted that the key determining factor in finding that a forum is a “designated public forum” is government intent, and that Reisch had “intentionally created an avenue through which to receive communications from the public” by setting up a Twitter account for her campaigning and government work [p. 13-14, District Court Judgment]. The District Court noted that, when dealing with a designated public forum, government may enforce a “content-neutral, time, place and manner” restriction but only when such restriction is “necessary to serve a significant government interest and is narrowly drawn to achieve that interest” [p. 14. District Court Judgment]. The Court held that Reisch’s blocking of Campbell so soon after his retweet of Kendrick’s tweet demonstrated that the decision to block Campbell was not content neutral and therefore a violation of Campbell’s First Amendment rights.
In respect of whether the violation of Campbell’s rights occurred under the color of state law, the Court had to determine whether Reisch had acted “in [her] official capacity or while exercising [her] responsibilities pursuant to state law” [p. 15, District Court Judgment]. The Court stated that this is a factual inquiry and it had to ascertain whether there was a “sufficient nexus” between Reisch’s conduct and her official public position. It added that her conduct would still occur “under the color of state law” if she had overstepped her authority while purporting to act in an official capacity. Reisch’s Twitter account focused mainly on her candidacy for the District and then, after her election, on her work as state representative, but she did not consider Twitter as a mode of communication with her constituents [p. 6, District Court Judgment]. The Court held that everything about Reisch’s Twitter account indicated that it was an account through which to tweet “about her work as a public official” and that she had blocked Campbell for tweets “critical of [her] role as a public official” [p. 16, District Court Judgment].
Accordingly, the District Court held that Reisch had violated section 1983 and that Campbell was entitled to declaratory and injunctive relief.
Reisch appealed the judgment of the district court to the Court of Appeals for the Eight Circuit.
Circuit Judge Arnold delivered the majority judgment of the Court and was joined by Judge Colloton. Judge Kelly delivered a dissenting judgment. The primary issue before the Court was whether Reisch was liable under 42 U.S.C. §1983 for violating Campbell’s First Amendment Rights.
Reisch argued that she maintained her Twitter account in a private capacity to campaign for political office. She submitted that a public official only acts under the color of state law when “[s]he exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law” [p. 5]. She denied that she had used power conferred on her by state law to block Campbell and said the law did not confer any authority on her to block him.
Campbell accepted that the use of Twitter to campaign for public office was not acting “under the color of state law”, but he argued that – for an official to act under the color of state law – all that is required is that their actions be “fairly attributable” to the State [p. 5]. Campbell maintained that Reisch acted under the color of state law because the virtual forum was created to discuss the conduct of her office, and he sought a “more holistic view of the color-of-law question” [p. 5]. He referred to the cases of Knight II and Davison v. Randall 912 F.3d 666, 679–80 (4th Cir. 2019) which had both held that, in those cases, government officials’ social media accounts were official, government accounts.
The Court stressed that the First Amendment only prohibits restrictions on speech by the government and that by excluding any private restrictions it “protects a robust sphere of individual liberty” [p. 4]. It also emphasized that the requirement that a state official have acted “under the color of state law” ensures that their conduct in their private capacity does not constitute official conduct and so does not “trigger § 1983 liability” [p. 4].
In acknowledging the Trump and Davison decisions raised by Campbell, the Court highlighted that the Court in Trump had explicitly noted that “not every social media account operated by a public official is a government account” [p. 6]. It held that “Reisch’s account is the kind of unofficial account that the Trump court envisioned” [p. 6] because it had begun as a private account (when she was a private citizen campaigning for office) and that just because she continued to use the account after she was elected did not “magically alter” its character [p. 7]. The Court noted that most of Reisch’s tweets after the election still carried the message that she was “the right person for the job” and the account sought to “promote herself and position herself for more electoral success down the road” [p. 7]. The Court distinguished the character of Reisch’s account from the official accounts in the Davison and Trump cases by noting that those accounts solely addressed governmental activity (such as the announcement of a governmental nominee or governmental response to a crisis). The Court noted that the District Court had described Reisch’s Twitter account as having the “trappings” of an official account because its handle (@CheriMO44) referred to her district and her role, the profile pictures were of her official business, and that the content of the tweets involved discussion of political issues. However, the Court identified that “even if these can be trappings of an official account, they can quite obviously be trappings of a personal account as well” [p. 8]. The Court held that “a Twitter page of a political candidate does not convert itself into an official page just because the candidate chooses a handle that reflects the office she is pursuing … or because she posts a photo of herself working at the job she was elected to perform and hopes to be elected to perform again” [page 8]. The Court paid particular attention to the fact that Reisch’s account had begun as one for her campaign, and described it as “more akin to a campaign newsletter than to anything else” [p. 9]. Accordingly, the Court held that it was Reisch’s “prerogative” to determine who accesses her account and that her “First Amendment right to craft her campaign materials necessarily trumps Campbell’s desire to convey a message on her Twitter page that she does not want to convey” [p. 9].
Accordingly, the Court reversed the District Court’s decision.
Judge Kelly delivered a dissenting opinion, disagreeing with the majority on the issue of whether Reisch was acting “under the color of state law”. Kelly stated that the nature of the tweets Reisch published before and after her election were fundamentally different: before, they focused on soliciting campaign donations, joining her campaign team and highlighting her donations; after, they focused on the work of the Missouri legislature. Kelly noted that Reisch’s “persistent invocation of her position as an elected official overwhelmed any implicit references one might perceive to her campaign or future political ambitions” [p. 11]. Kelly also disagreed with the majority’s views that Reisch’s post-election tweets focused on her delivering on election promises, noting that “the statements of lawmakers carrying out their official duty to communicate information to constituents will very often harken back to some campaign promise or another, so this factor does not merit the outsized importance the court places on it today” [p. 12]. In the comparison with the Davison case, Kelly noted that the “evidence that Reisch blocked Campbell ‘to suppress speech critical of [her] conduct of official duties or fitness for public office’ … strengthens the inference that her conduct was attributable to the state” [p. 12]. Accordingly, Kelly would have found that Reisch was acting “under the color of state law” when she blocked Campbell.
Kelly also noted that she would have held that the interactive space on Twitter constituted a “designated public forum” and that Reisch’s conduct amounted to “viewpoint discrimination” because “she thought [Campbell] shared the view of Missouri State Representatives Bruce Franks and Kip Kendrick that she engaged in ‘unacceptable’ behavior as a public official” [p. 14]. Kelly would have held that Reisch discriminated against Campbell specifically based on that viewpoint in a designated public forum, and so violated the First Amendment.
Kelly would, therefore, have affirmed the District Court’s judgment.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By distinguishing the facts of this case from Knight II and Davison v. Randall, and taking a narrow view of the phase, “the color of state law,” and the nature of a government official’s Twitter account the Court of Appeals for the Eighth Circuit divides opinions among the federal circuit courts over the question of whether an elected official can block a constituent from their social media account. The Court also privileged the First Amendment rights of a government official to tailor the nature of their social media accounts over the rights of constituents to engage with that account.
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