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Date: Apr. 2022
From: Harvard Law Review(Vol. 135, Issue 6)
Publisher: Harvard Law Review Association
Document Type: Case note
Length: 4,148 words
Lexile Measure: 1690L

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CONSTITUTIONAL LAW--FIRST AMENDMENT--EIGHTH CIRCUIT FINDS STATE REPRESENTATIVE NOT A STATE ACTOR WHEN BLOCKING CONSTITUENTS ON TWITTER.--Campbell v. Reisch, 986 F.3d 822 (8th Cir. 2021), reh'g and reh'g en banc denied, No. 19-2994, 2021 BL 76260 (8th Cir. Mar. 3, 2021)

As the "modern public square," (1) social media platforms have profoundly shaped today's political discourse. All senators and representatives in the 115th Congress created Twitter accounts, (2) and a growing majority of local governments, especially in major cities, have set up social media profiles. (3) The increased social media presence of government officials raises questions about their constitutional responsibilities, and a series of lawsuits has arisen out of public officials' decisions to block or censor constituents on social media. Recently, in Campbell v. Reisch, (4) the Eighth Circuit held that a state representative did not violate the First Amendment by blocking her constituents on Twitter, (5) becoming the first U.S. Court of Appeals to find no First Amendment violation in such a situation and the first to rest the decision on the state action doctrine. While applying the same fact-intensive framework developed by the Second and Fourth Circuits, the Campbell court placed undue weight on the untenable factual distinction between an account's campaigning and governance purposes, a problematic approach that opened a new door for government officials to justify censoring opposing views on social media.

Cheri Reisch is a representative for the 44th District of the Missouri House of Representatives. She created a Twitter account in September 2015 when she announced her candidacy for state representative. After winning the election in November 2016, Rep. Reisch used the account to tweet about her work. (6) She operated the account under the handle "@CheriMO44" (referring to her district) (7) with a photo of her swearingin ceremony as the banner. (8) She tweeted about specific legislation, (9) posted pictures of herself on the House floor, and "touted her performance as a representative." (10)

On June 22, 2018, Rep. Reisch tweeted about Maren Jones, her political opponent in the 2018 general election: "Sad my opponent put her hands behind her back during the Pledge." (11) Another state representative, Kip Kendrick, criticized the tweet, calling it "a low blow and unacceptable." (12) Mike Campbell, one of Rep. Reisch's constituents, retweeted Rep. Kendrick's criticism. (13) After the retweet, Rep. Reisch blocked Campbell from following or commenting on her page. (14)

Campbell filed suit against Rep. Reisch under 42 U.S.C. [section] 1983 (15) in the U.S. District Court for the Western District of Missouri. (16) Campbell alleged that Rep. Reisch's blocking of his account constituted a viewpoint-based restriction under color of state law, violating the First Amendment. (17) The court agreed with Campbell. (18) It found that his retweet was protected speech (19) and that the interactive spaces of Rep. Reisch's tweets were a designated public forum, since she used her account to promote her campaign and legislative agenda. (20) It also held that she acted under color of state law because she controlled her account in...

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Gale Document Number: GALE|A702381259