Mike Campbell v. Representative Cheri Reisch ( 2021 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2994
___________________________
Mike Campbell
lllllllllllllllllllllPlaintiff - Appellee
v.
Representative Cheri Toalson Reisch
lllllllllllllllllllllDefendant - Appellant
------------------------------
Electronic Frontier Foundation; Knight First Amendment Institute at Columbia University
lllllllllllllllllllllAmici on Behalf of Appellee(s)
____________
Appeal from United States District Court
for the Western District of Missouri - Jefferson City
____________
Submitted: November 17, 2020
Filed: January 27, 2021
____________
Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.
____________
ARNOLD, Circuit Judge.
After Missouri state representative Cheri Toalson Reisch blocked Mike
Campbell from her Twitter account, he sued her under 42 U.S.C. § 1983, claiming she
had violated the First Amendment by denying him the right to speak. Following a
bench trial, the district court agreed with Campbell, declared that Reisch had violated
his rights, and ordered her to stop blocking Campbell and others because of the
content or viewpoint of their speech. Reisch appeals, arguing, among other things,
that Campbell is not entitled to § 1983 relief because she was not acting under color
of state law when she blocked him. We agree with Reisch, and so we reverse and
remand.
As the district court explained in its findings of fact, the social media platform
Twitter allows its users to publish short messages, photographs, videos, and
hyperlinks (all called tweets) to the general public. Other users may respond to or
republish those tweets and engage in virtual dialogues with other users on the
platform. They may even "follow" other users, and when they do, they will receive
those users' tweets automatically on their feed, which is a continuously-updating
scroll of new tweets from other users. But a user may also block certain followers,
and if they attempt to follow or access the blocking user's page or messages, they will
receive a message informing them of the block.
Reisch created her Twitter account in September 2015 when she announced her
candidacy for state representative. Her very first utterance read, "I am proud to
announce my candidacy to represent Missouri's 44th District. Let's work together &
create opportunities for jobs & education." A few months later, she posted a copy of
a letter on her campaign stationery seeking contributions to her campaign and a photo
of herself with the Speaker of the Missouri House. As the district court observed,
"[t]hroughout the first ten months of 2016, [Reisch] posted dozens of tweets about her
campaign for the Missouri House, frequently using the hashtags #MO44 and
#TeamCheri."
-2-
Reisch won her election in November 2016, and, over the next eighteen
months, she tweeted about her work as a state representative and posted pictures of
herself on the House floor or standing with other elected officials. Typical examples
include a message where Reisch said she "was humbled to commit myself to represent
everyone in the 44th District & uphold the Constitution of Missouri. #MOLeg." In
another, she stated she was "[t]hrilled to have so many of my neighbors from the 44th
District come by the office at tonight's energetic Governor's Ball! #MOLeg #MO44."
She later forwarded a message from the House members of her political party saying
they were "proud to deliver results during the first half of session that will bring job
growth to MO. #moleg." Accompanied by a photograph of Reisch with the House
Speaker, she once also posted, "I promised my neighbors in #MO44 that I'd work
tirelessly to improve our #economy. I'm making good on that promise." She tweeted
about specific legislation (such as Real ID, "Right to Work," and tort reform laws),
about testifying before the state senate, and about times when the governor and
lieutenant governor visited her district. Finally, she touted her performance as a
representative, stating things like "[a]ccomplished much in my 1st 2 years, ready for
the next 2" and, in relation to a legislative scorecard from a group called "United for
Missouri," "I scored an A. Not bad for a Freshman." As the district court noted,
Reisch "used her Twitter page to engage in discourse about political topics and/or to
indicate her position relative to other government officials."
The message that Campbell identifies as the impetus for Reisch's block
concerned her appearance at a local event that featured a pledge of allegiance to the
flag. Reisch tweeted, "Sad my opponent put her hands behind her back during the
Pledge." Another state representative responded the next day to say that Reisch's
opponent's "father was a Lieutenant Colonel in the Army. Two of her brothers served
in the military. I don't question [the opponent's] patriotism. That's a low blow and
unacceptable from a member of the Boone County delegation." Campbell, one of
Reisch's constituents, retweeted that response on his own page. He later received a
-3-
message that Reisch had blocked him. The district court found that Reisch had also
blocked at least 123 other Twitter users.
The First Amendment, by its terms, prohibits only governmental abridgment
of speech. See Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928
(2019). By not interfering with private restrictions on speech, the amendment
"protects a robust sphere of individual liberty." Id. Similarly, "§ 1983 excludes from
its reach merely private conduct," in that, for a § 1983 claim to succeed, a defendant
must have acted "under color of" state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40, 49–50 (1999). It is not enough that the defendant is a public official,
because acts that public officials take in "the ambit of their personal pursuits" do not
trigger § 1983 liability. See Magee v. Trs. of Hamline Univ., 747 F.3d 532, 535 (8th
Cir. 2014).
So the question this case presents is whether Reisch acted under color of state
law when she blocked Campbell on Twitter. Campbell maintains that she did because
she blocked him for criticizing her fitness for political office even though she had
created a virtual forum for the public to discuss "the conduct of her office." Reisch
says she didn't act under color of state law because she runs this Twitter account in
a private capacity, namely, as a campaigner for political office. The district court
concluded that Reisch had acted under color of state law, but along the way, the court
appeared to agree that Reisch had used the account to further her campaign, and it
relied on that fact to support its conclusion that Reisch had acted under color of law.
Campbell does not defend this portion of the district court's opinion on appeal, and
not without reason: Running for public office is not state action; it is a private
activity. Campbell does say, though, that he is entitled to prevail nonetheless because
Reisch acted under color of state law for other reasons. He also points out that Reisch
did not rely on the campaign nature of her account in her argument before the district
court, but given the district court's attention to the subject and given that Reisch has
-4-
argued all along that she did not act under color of state law, we will consider her
argument. See Weitz Co. v. Lloyd's of London, 574 F.3d 885, 890–91 (8th Cir. 2009).
The parties differ over the standards we should apply to determine if Reisch
acted under color of law. Reisch maintains that "[a] public employee acts under color
of 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." See
Magee, 747 F.3d at 535. She then argues that she did not use some power state law
had granted her to block Campbell, and denies that state law had otherwise clothed
her with authority to block him. Anyone, whether a state representative or not, can
block someone on Twitter, and so, the argument runs, Reisch simply could not have
acted under color of state law.
Campbell, on the other hand, asks us to take a more holistic view of the color-
of-law question. He maintains that, for a defendant to act under color of law, her
actions need only be "fairly attributable" to the State, which "is a matter of normative
judgment" whose "criteria lack rigid simplicity." See Brentwood Acad. v. Tenn.
Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001). Campbell's approach finds
support in two circuit court opinions dealing with social media blocks. See Knight
First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 235–36 (2d Cir.
2019); Davison v. Randall, 912 F.3d 666, 679–80 (4th Cir. 2019). We do not decide
which approach is correct because we think that, even applying the one Campbell
advances, the record will not support a conclusion that Reisch acted under color of
law.
Campbell encourages us to follow the path taken by Trump and Davison and
conclude that Reisch acted under color of state law. In Davison, the chair of a local
governmental board, Phyllis Randall, blocked a constituent from a Facebook page.
912 F.3d at 672–73. The page, titled "Chair Phyllis J. Randall," was created the day
before Randall was sworn in as chair, and she designated the page "governmental
-5-
official." Randall also had a personal Facebook page and a page devoted to her
campaign. Id. at 673. As the Fourth Circuit pointed out, Randall used the page "as a
tool of governance" by updating constituents about the county's activities and
emergency responses, as well as by soliciting public input on policy issues. Id. at 680.
And it bore certain "trappings" of her office, including a page title that noted
Randall's official title, lists of official contact information, links to the official county
website, posts about official activities, and even posts expressly directed to all of
Randall's constituents. Id. at 680–81.
In Trump, the Second Circuit considered President Trump's Twitter account,
which was unabashedly used for official purposes. President Trump and members of
his administration described the account as official and used it to announce, describe,
and defend policies; to promote his legislative agenda; to announce official decisions;
and to engage with foreign leaders, among other things. 928 F.3d at 231. His press
secretary described the tweets as "official statements" of the president, members of
his administration helped him operate the account, and even the National Archives
deemed the tweets "official" for purposes of archiving them. Id. at 231–32, 235–36.
As that court explained, "the evidence of the official nature of the Account is
overwhelming." Id. at 234. The court reached this conclusion even though President
Trump had created the account long before he became president. Id. at 235. The court
was careful to note, however, that "not every social media account operated by a
public official is a government account." Id. at 236.
We hold that Reisch's account is the kind of unofficial account that the Trump
court envisioned. First of all, no one seriously disputes that her account at least began
life as a private account because Reisch was not a public official when she created it.
Indeed, it seems safe to say that someone who isn't a public official cannot create an
official governmental account. But even if Reisch had been a public official at the
time, we would still hold that she had not created an official governmental account
because she used it overwhelmingly for campaign purposes: She created the account
-6-
the day she announced her candidacy; she solicited donations to her campaign on the
account; and, for over a year, she sought to convince her audience to support her
election bid.
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.
Reisch's account is fundamentally different from the accounts at issue in Trump
and Davison. For one thing, official governmental activity was conducted on those
accounts, whether it was President Trump announcing an appointee or conducting
foreign affairs, or Chairwoman Randall coordinating her county's response to a
blizzard. Even if Reisch's official duties as a representative extend beyond voting or
participating in committee meetings and include things like communicating with
-7-
constituents about legislation, her sporadic engagement in these activities does not
overshadow what we believe was quite clearly an effort to emphasize her suitability
for public office. The dissent points to a few tweets that Reisch posted after the
election to support the view that she changed the way in which she was using her
account. These messages are necessarily different from previous ones because they
report on events that occurred in the state legislature. But it is not obvious that their
purpose was different. They were consistent with a desire to create a favorable
impression of Reisch in the minds of her constituents. Reisch's new tweets, moreover,
also provided information on her local political party's annual chili supper and
Lincoln Day banquet, featured pictures of her posing with young boys who had
brought her chocolate, and reported that her niece would be voting for a particular
political candidate. The main point is that occasional stray messages that might
conceivably be characterized as conducting the public's business are not enough to
convert Reisch's account into something different from its original incarnation.
The district court also noted that Reisch's Twitter page had what the Davison
and Trump courts called "trappings" of an official account. For example, the court
pointed out that Reisch's twitter handle, @CheriMO44, refers to the district she
represents and her role as state representative. The court also drew attention to photos
at the top of the Twitter page showing Reisch on the House floor and to Reisch's
discussion of political issues. But even if these can be trappings of an official
account, they can quite obviously be trappings of a personal account as well. The
Trump and Davison courts were not concerned with distinguishing an official page
from a campaign page as we are, and so they do not offer much guidance for deciding
this case. The 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 (which Reisch did here before she became an elected official) 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. And a campaign page certainly doesn't become
something else simply because it discusses political topics. One can expect
-8-
discussions of political topics on such a page, and Reisch in fact discussed them on
the account before she became a government official. All these "trappings" are just
too equivocal to be helpful here.
In short, we think Reisch's Twitter account is more akin to a campaign
newsletter than to anything else, and so it's Reisch's prerogative to select her audience
and present her page as she sees fit. She did not intend her Twitter page "to be like
a public park, where anyone is welcome to enter and say whatever they want." See
Morgan v. Bevin, 298 F. Supp. 3d 1003, 1011 (E.D. Ky. 2018). Reisch's own 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 wish to convey, see
Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 559
(1995), even if that message does not compete for room as it would, say, in 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. It's her page to manage as she likes. Though Campbell and others
may not like how Reisch runs her page, "the place to register that disagreement is at
the polls," see Morgan, 298 F. Supp. 3d at 1013, or, at least, on Campbell's own page.
We therefore reverse and remand for the district court to enter judgment in
Reisch's favor.
KELLY, Circuit Judge, dissenting.
Missouri State Representative Cheri Toalson Reisch appeals the district court’s
adverse judgment that she violated Mike Campbell’s First Amendment rights by
blocking him from her Twitter account. Because I believe Reisch was acting under
color of state law when she blocked Campbell, I respectfully dissent.
-9-
I.
Under 42 U.S.C. § 1983, “a public employee acts under color of state law while
acting in [her] official capacity or while exercising [her] responsibilities pursuant to
state law.” Jones v. Gutschenritter, 909 F.2d 1208, 1211 (8th Cir. 1990) (quoting
West v. Atkins, 487 U.S. 42, 50 (1988)); see also Filarsky v. Delia, 566 U.S. 377, 383
(2012) (“Anyone whose conduct is fairly attributable to the State can be sued as a
state actor under § 1983.” (cleaned up)). Here, the court’s determination that Reisch
was not acting under color of state law rests on its finding that Reisch used her
Twitter account mainly to “position herself for more electoral success down the
road.” In my view, this finding is neither supported by the record nor dispositive of
the state-action inquiry.
Reisch’s election to public office may not have “magically alter[ed]” the
character of her Twitter account, as the court notes, but it did change how she used
the account and for what purpose. See Knight First Amend. Inst. at Columbia Univ.
v. Trump (Knight II), 953 F.3d 216, 219 (2d Cir. 2020) (denial of reh’g en banc)
(Parker, J., statement with respect to denial of reh’g en banc) (explaining that the
“critical question for First Amendment purposes” is “not the nature of the Account
when it was set up a decade ago,” but rather, “how the President uses the Account in
his capacity as President.”). Before Reisch was sworn in, her tweets used her
campaign hashtag (“#TeamCheri”), invited people to join her campaign team,
solicited campaign donations, and publicized endorsements from various groups and
individuals. By contrast, between January 2017 and February 2019 (when she
apparently deleted her Twitter account), Reisch did not tweet a single request for
campaign donations, or make any reference to “#TeamCheri.” Instead, the majority
of Reisch’s tweets and retweets after January 2017 reported on new laws (“MO
citizens will now have a choice to get Real ID compliant license”); provided
information about the Missouri legislature’s work (“A big thanks to House
Communications for doing this great story on this piece of legislation that was
-10-
passed”); and informed the public of Reisch’s own official activities (“I spoke [on the
Missouri House floor] about my 34 years experience with prevailing wage. Repeal
it. Save taxpayers $.”). Cf. Knight First Amend. Inst. at Columbia Univ. v. Trump
(Knight I), 928 F.3d 226, 235-36 (2d Cir. 2019) (emphasizing that President Trump
used his Twitter account “as a channel for communicating and interacting with the
public about his administration” and to “announce matters related to official
government business”), reh’g denied en banc, Knight II, 953 F.3d 216 (2d Cir. 2020).
Through her Twitter account, Reisch also interacted with Missouri residents,
including a fourth grade teacher who thanked Reisch for speaking to students about
“a [s]tate [r]epresentative’s job.” Moreover, in addition to using her Twitter account
as a “tool of governance,” Reisch “clothed [it] in the trappings of her public office.”
See Davison v. Randall, 912 F.3d 666, 680 (4th Cir. 2019) (cleaned up). She set her
location to “District 44, Missouri, USA,” described herself in her bio as “MO State
Rep 44th District,” displayed a profile photo taken in the Missouri House chamber,
and used a large photo of her swearing-in ceremony as the banner at the top of her
Twitter feed. In short, 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.
The court characterizes Reisch’s tweets as merely “show[ing] voters that she
was . . . fulfilling campaign promises.” And it is true that public officials acting
purely in pursuit of personal interests do not do so “under color of state law.” See,
e.g., S.J. v. Kan. City Mo. Pub. Sch. Dist., 294 F.3d 1025, 1027 (8th Cir. 2002). This
does not mean, however, that an official whose challenged conduct is closely related
to her official responsibilities cannot act “under color of state law” simply because
her actions simultaneously further personal goals or motives. See Dossett v. First
State Bank, 399 F.3d 940, 949-50 (8th Cir. 2005) (“Just as a police officer conspiring
to obtain a search warrant based on false evidence, or a judge agreeing to issue an
injunction in exchange for a bribe, may act under color of law . . ., a school official
reaching a mutual understanding with a private actor to retaliate against a private
-11-
citizen for questioning the work of the school board may do the same.” (cleaned up));
cf. Does 1-10 v. Haaland, 973 F.3d 591, 601-02 (6th Cir. 2020) (concluding that
Congressmembers were acting within the scope of their employment when they
criticized a political opponent’s supporters on Twitter because “the act of
communicating one’s views” to the public falls within the “wide range of legitimate
‘errands’ performed for constituents”); Council on Am. Islamic Rels. v. Ballenger,
444 F.3d 659, 665 (D.C. Cir. 2006) (“[A] primary obligation of a Member of
Congress in a representative democracy is to serve and respond to his or her
constituents.” (cleaned up)). Indeed, it seems 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.
On this record, and given the focus of the “under color of state law” inquiry on
the “actual or purport[ed]” relationship between Reisch’s conduct and her official
duties, see, e.g., Lee ex rel. Lee v. Borders, 764 F.3d 966, 971 (8th Cir. 2014), I
cannot conclude that Reisch used her Twitter account primarily for campaign
purposes, let alone that she made such a showing by a preponderance of the evidence.
Instead, evidence that Reisch blocked Campbell “to suppress speech critical of [her]
conduct of official duties or fitness for public office,” Davison, 912 F.3d at 680
(quoting Rossignol v. Voorhaar, 316 F.3d 516, 524 (4th Cir. 2003)), strengthens the
inference that her conduct was attributable to the state. See id. (“[A] challenged
action by a government official is fairly attributable to the state when ‘the sole
intention’ . . . in taking the action was ‘to suppress speech critical of his conduct of
official duties or fitness for public office.’” (quoting Rossignol, 316 F.3d at 524)).
II.
Having concluded that Reisch was acting under color of state law, I also
believe that Reisch engaged in viewpoint discrimination in violation of the First
-12-
Amendment. We generally use a forum-based approach to evaluate the suppression
of speech on government-owned or government-controlled property.1 See, e.g.,
Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1885 (2018). There are “three types
of government-controlled spaces: traditional public forums, designated public forums,
and nonpublic forums.” Id. A designated public forum is a “space[] that [has] not
traditionally been regarded as a public forum,” such as a park, street, or sidewalk,
“but which the government has intentionally opened up for that purpose.” Id.(cleaned up); cf. id. at 1886 (applying forum analysis to polling places because they
are, “at least on Election Day, government-controlled property”); Denver Area Educ.
Telecomms. Consortium, Inc. v. F.C.C., 518 U.S. 727, 742 (1996) (Kennedy, J.,
concurring in part, concurring in judgment in part, and dissenting in part) (“Public
fora do not have to be physical gathering places, nor are they limited to property
owned by the government.” (cleaned up)). In both traditional and designated public
forums, the government may not impose viewpoint-based restrictions on speech.
Mansky, 138 S. Ct. at 1885.
Here, I agree with Campbell that the interactive component of Reisch’s Twitter
account—including the space below each tweet where users could reply to Reisch and
engage with other members of the public who might have been responding to
her—constituted a designated public forum. Reisch used her Twitter account to
interact with and communicate information to the public, including her constituents.
Unlike with her Facebook page, which she kept private (that is, accessible only to
friends, family, and personal acquaintances), Reisch did “not attempt[] to limit the
[Twitter] Account’s interactive feature to [her] own speech.” Knight I, 928 F.3d at
1
In Knight I, the Second Circuit summarized the impact of blocking a Twitter
user: “A blocked account is prevented from viewing any of the [official’s] tweets,
replying to those tweets, retweeting them, or liking them,” the last three of which
constitute “expressive conduct that blocking inhibits.” 928 F.3d at 237. Blocking a
Twitter user also “limits their ability to participate with other members of the public
in the comment threads that appear below [the official’s] tweets.” Id. at 232.
-13-
239; see id. (explaining that the “case does not turn on the President’s initial tweets,”
which constitute government speech, but “on his supervision of the interactive
features” of the Twitter account). Though Reisch emphasizes that she did not control
users’ access to Twitter, what is relevant is that she controlled access to the
interactive features of her own account. See id. at 234-36; Davison, 912 F.3d at 683.
And while Reisch’s tweets—standing alone—may constitute government speech, in
maintaining an interactive space through her Twitter account, she ultimately created
a designated public forum.
Just as public officials “may not preclude persons from participating” in the
public-comment portion of a town hall meeting “based on their viewpoints,” Knight
II, 953 F.3d at 221 (Parker, J., statement with respect to denial of reh’g en banc),
Reisch cannot block users from her Twitter account because she dislikes their
opinions. But this is precisely what Reisch did. The weight of the evidence,
including Reisch’s own testimony at trial and during her deposition, shows that
Reisch blocked Campbell (and others) because she thought he shared the view of
Missouri State Representatives Bruce Franks and Kip Kendrick that she engaged in
“unacceptable” behavior as a public official. Because Reisch, acting under color of
state law, was “impermissibly motivated by a desire to suppress a particular point of
view” when she blocked Campbell, Davison, 912 F.3d at 687, I believe she
discriminated against Campbell based on his viewpoint, thereby violating the First
Amendment.
For these reasons, I would affirm the district court’s judgment.
______________________________
-14-