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Friday, January 29, 2021

Circuit split on public officials' Twitter accounts

A divided Eighth Circuit held that a state legislator did not act under color in blocking people from her Twitter account. She started the account as a candidate and used it primarily for tweets supporting her reelection and explaining why she is the right person for the office, including tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance. That some tweets promoted her legislative achievements did not overcome the candidate focus, even if speaking with constituents can qualify as action under color. Judge Kelly dissented.

The question of how to treat "public communication" may prove a pivotal issue on these questions of social media and state action. All elected officials communicate with the public and promote their official work with an eye towards reelection and showing why their official work makes them the "right person for the job." But they also communicate with the public and promote their official work because they represent the public and are expected to notify the public of what is being done on their behalf. And so they want the public to keep them in office because they are doing so well on their behalf. I do not see how to draw a sharp line between candidate and official, especially for legislators, especially as the system involves into a perpetual campaign.

I also wonder why the case is not moot, as is Knight v. Trump. The legislator deleted her Twitter account in 2019. So a claim for an injunction seeking to be allowed onto the legislator's Twitter site is not alive if that Twitter site no longer exists. The opinion does not say if the plaintiff sought damages. Or perhaps there is some kind of capable-of-repetition argument--that the official may at some point return to social media. [Update: Or not perhaps not moot because of voluntary cessation--she could reopen her Twitter account at any time].

Posted by Howard Wasserman on January 29, 2021 at 09:03 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink


Reisch no longer has a Twitter account. So had the case come out the other way, the court would have ordered Reisch not to block Campbell from a Twitter site she no longer has. The injunction gives the plaintiff no practical relief and therefore is moot (unless the court deems it CRER, as I said in the OP). It's as if the government operated an auditorium as a public forum, then tore the building down.

I don't buy the distinctions, so I think it is inconsistent with prior cases and therefore a circuit split (as we all understand the term). If nothing else, there is a split on how to approach these cases. The Second and Fourth Circuits analyzed it as a case of a public employee and whether she is off-duty or on-duty; the Eighth Circuit suggested (but did not decide) that the correct approach might be making a private actor public.

Posted by: Howard Wasserman | Jan 30, 2021 10:18:08 AM

Sorry, by "circuit split" in the title of your post, do you mean there's a split among multiple circuits, or that the Eighth Circuit panel split amongst themselves? If you mean the latter, using "circuit split" is confusing because its conventional meaning is solely the former. If you mean the former, I'm not sure which circuits you think the Eighth Circuit disagrees with, because they claim, plausibly enough, that their decision is consistent with the Second and Fourth Circuits' rulings for plaintiffs in cases like this one.

Posted by: Asher Steinberg | Jan 29, 2021 10:33:32 PM

"tweets criticizing her opponent for not placing her hand over her heart during the Pledge of Allegiance"

It's good to see that she's laser focused on the bread and butter issues with a major impact on her constituents' everyday lives!

Posted by: hardreaders | Jan 29, 2021 10:23:37 AM

Important issue. It doesn't seem at all as moot. It seems rather, that the account is active, and the plaintiff, is asking the court, to order Cheri, not to block him anymore. I quote the circuit summing the district:

" ....ordered her to stop blocking Campbell and others......"

So, still alive. A tangible prospective remedy it seems, is sought here.

In more substantive terms, there are amazing philosophical/ legal issues here. Worth noting, that the dissenting, and correctly so, rather has focused among others, on the nature of the forum(as "public forum") not only on the purpose of the account or the site, as did the majority. I quote from the dissenting:

" 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."


Posted by: El roam | Jan 29, 2021 10:22:20 AM

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