TGH Litigation


TGH fights State Rep's effort to dismiss First Amendment challenge

A simple click could have far-reaching consequences for free speech on Twitter

By Tessa Weinberg, Columbia Missourian, November 17, 2018

It started with the click of a button.

Rep. Cheri Toalson Reisch, R-Hallsville, blocked Mike Campbell, a Columbia lawyer, on Twitter for sharing a tweet critical of her. Now, she has a lawsuit on her hands that she's trying to dismiss.

To block or not to block, that was the question central to attorneys' arguments Friday afternoon before U.S. District Judge Brian C. Wimes, who will decide in two weeks whether to dismiss Campbell's lawsuit against Reisch.

"We hope that he will rule this is a frivolous lawsuit. It needs to be thrown out," Reisch said.

Politicians blocking constituents on social media is prevalent nationally, and Reisch's case could have far-reaching consequences, attorneys said.

Campbell's lawsuit, filed in June, argues that Reisch committed viewpoint discrimination by blocking him after he retweeted a tweet from Rep. Kip Kendrick, D-Columbia.

The lawsuit claims Campbell was "engaging in fully protected political speech."

"Why didn’t he call me, email me, write me a letter? Saying I suppressed his First Amendment right is just bogus. It's just BS," Reisch said in an interview with The Eagle 93.9 in July. Reisch has since unblocked Campbell.

Attorneys debated whether Twitter — the social media platform where users post articles, share statements and hold conversations — is a public or private forum when used by an elected official.

It's a novel issue that's recently startd to be parsed out in the courts. Lowell Pearson, Reisch's attorney, said Campbell's lawsuit is one of a few in the U.S. they found that involves a public official blocking a constituent on Twitter.

In May, a federal judge ruled that President Donald Trump can't block users on his "@realDonaldTrump" Twitter account, which he has argued is his personal account, according to Bloomberg. The judge said the account constitutes a public forum, and the plaintiffs in the lawsuit must be unblocked. The U.S. Department of Justice has promised to appeal the ruling, according to Reuters.

In Kentucky, a federal judge took a different stance and ruled that Republican Gov. Matt Bevin was not suppressing speech of users he blocked on social media. The Courier-Journal found that Bevin had blocked nearly 600 users on his Facebook and Twitter accounts.

Wimes' decision could tip the scales on judges' interpretation of the law.

"I guess the court gets to be the tie breaker on that point, " Pearson said to Wimes Friday.

Trump and Bevin aren't alone. With the rise of social media, elected officials have increasingly used it as a way to reach constituents directly — and cut them off.

The Columbia Missourian discovered former Gov. Eric Greitens blocked users on Facebook from asking questions on Facebook Live town halls. In response, Greitens' office created new "official" accounts and moderation guidelines. Gov. Mike Parson was doing it too, until the Kansas City Star reported on the issue. 

Greitens' social media use is currently under investigation by Attorney General Josh Hawley's office. "The investigation is ongoing," Hawley's press secretary Mary Compton, said in an email Wednesday.

Friday, attorneys didn't see eye to eye as to what constitutes a "public forum."

Pearson claimed that because Twitter is a private platform, with limited government control, it can't be considered an interactive public forum.

Wimes pushed back.

"There's a constant ongoing interaction," on Twitter, Wimes said.

Pearson acknowledged that can be the case but also cited the need for some users to keep their profiles private or limit the levels of interaction when being bombarded by vitriol from anonymous users.

"If everybody has unfettered access to say anything they want on Twitter," Pearson said, "the rational response would be that they might want to close their account."

Andrew Hirth, an attorney representing Campbell, argued otherwise. Although Twitter may be a private platform, Reisch has control over her own account, Hirth said. The government doesn't have to be in control of the platform or property for it to be considered an interactive public forum, he said, citing the 2018 Supreme Court case Minnesota Voters Alliance v. Mansky. The case revolved around whether Minnesota’s ban on political apparel at polling places violated people's First Amendment's rights.

While the government didn't own the polling places, they were temporarily being used by the government, putting them under government control, Hirth argued. It would be different, if a lawmaker paid for a billboard to display their message, Hirth said.

"I don't have a right to spray paint my answer on your billboard," he said.

Jean Maneke, the Missouri Press Association's attorney, said that while a public forum is often thought of in the physical realm, it extends to electronic spaces as well.

"The public thinks of a public forum as a meeting that the public is invited to attend, and social media is not much different. Social media is an online place that the public has access to read, to participate in discussing matters," Maneke said. "It is recognized if someone is being disruptive, a public official might have the stronger potential for rights to discipline that person in some way. But by the same token, you have a First Amendment right. And the courts have always said that you can't limit someone's right to speech unless there are certain, limited things happening."

Hirth argued that it was even more necessary for state lawmakers that are tasked with shaping legislation to be accessible to their constituents.

"It is the people's branch of the government," Hirth said. "You have to allow someone to speak. But you don't have to listen to it. (Twitter) is an expansive space that you can have an infinite number of responses."

Pearson pushed back, and argued that Twitter's guidelines apply equally to all users — elected officials or not.

"The only rights they have are the rights Twitter gives them," Pearson said of users. "And they are all the same.

Wimes, who proposed hypothetical scenarios throughout the hearing as he dug into different contexts where the law might apply, said the case is "a novel and very interesting issue."

It has the potential to have far-reaching consequences.

Wimes said he anticipates returning a ruling in two weeks. If the case is not dismissed, a trial will be held Friday, March 29, 2019, in Kansas City Federal Court, according to a news release.

While district court opinions only apply to the parties involved, the case law could be cited by judges in the same district as precedent. And if the case is appealed — which both parties have said is likely — and goes before the Eighth Circuit Court of Appeals, the decision would become law in district courts in Arkansas, Iowa, Minnesota, Nebraska, North Dakota, South Dakota and Missouri, attorneys said.

First Amendment law experts have noted that elected officials can block constituents as long as they have clear policies and guidelines in place that stipulate what a user may get blocked for, such as using profanity or making threats.

"But I think the other important thing to remember here is this isn't that case," said Hirth, Campbell's attorney. "There's no allegation that Mike Campbell used profanity or used any threats or anything like that. In fact, he didn't even write anything. He retweeted another tweet that was critical of Rep. Reisch."

Pearson said if Campbell prevails, it would be "a step backwards" for interactions between constituents and elected officials.

Maneke noted that public officials sacrifice a degree of privacy when they assume the office.

"They clearly are a public figure under libel law because they have taken advantage of the public forum, of putting themselves out there to represent people, to speak on behalf of people," she said. "The courts have been really reticent to prohibit your right to stand on the street corner and scream. And so the same thing applies to social media.”

Kerry Hirth