A state legislator embroiled in a years-long battle with a constituent over her Twitter account won a ruling Wednesday from the Eighth Circuit Court of Appeals allowing her to block other users.
State Rep. Cheri Reisch, R-Hallsville, has been in court since 2018 over her decision to block the account of Mike Campbell of Centralia when he retweeted a message critical of her. She lost in U.S. District Court after a trial in April 2019 when Judge Brian Wimes ruled that her account was a public forum under the control of Reisch for the primary purpose of promoting her legislative and political efforts.
As such, he wrote, Reisch must allow anyone to follow her and comment on her posts.
The appeals court disagreed in a 2-1 ruling, with Judge Morris Arnold writing in the majority opinion that Reisch’s account was primarily a private account for campaign purposes and she could block anyone she sees fit.
Campbell’s attorney, Andy Hirth of Columbia, said he will ask for reconsideration by the entire 14-judge court. If that is denied, he said, he will appeal the decision to the U.S. Supreme Court.
“It is not over,” Hirth said.
The case will influence others around the country as case law is developed how the First Amendment interacts with social media, said Gregory Magarian, professor of law at Washington University.
“I do think the way the majority reasoned through it here is very generous for elected officials,” Magarian said.
Reisch said in an interview with The Independent that she was told to expect an appeal by her attorney, Lowell Pearson.
The issue, Reisch said, is that she should be able to prevent people from insulting her or calling her names the same way she could in person or on the telephone. She can walk away if it is in person and hang up if it is on the telephone, she said.
“I don’t have to listen to the vitriol and the name-calling,” she said.
While there was no cash award for Campbell after the trial court victory, he did win a judgment for Reisch to pay Hirth $51,680 in attorney fees. Now, with her victory on appeal, Pearson can seek payment from Campbell for his work on her behalf.
Reisch suspended her Twitter account in February 2019. She is not ready to reactivate it, she said Thursday, but may in the future.
The case stems from an incident in 2018 when Reisch criticized her then-opponent, Democrat Maren Jones, for putting her hands behind her back during the Pledge of Allegiance at a Missouri Farm Bureau event. Then state-Rep. Kip Kendrick tweeted in Jones’ defense, and Campbell retweeted Kendrick’s response and tagged Reisch.
Maren’s father was a Lieutenant Colonel in the Army.
Two of her brothers served in the military.
— Kip Kendrick (@Kip_Kendrick) June 23, 2018
It was then that Campbell was blocked.
The key to deciding whether Reisch acted “under the color of law” by blocking Campbell and others, or whether she was acting in a private capacity, is how the account was used before and after she won office, Arnold wrote.
If Reisch was acting in an official capacity, she would not have the right to bar speech just because it was critical of her. In a private capacity, she has that right.
Reisch created the account for her first campaign in 2016 before she became a lawmaker and continued to use it in a manner that was intended to primarily promote her political career, Arnold ruled.
That made it different, he wrote, from the Twitter account of former President Donald Trump, which was also created before he was elected but became a primary channel for official statements, or the Facebook account of a local official who created the page and designated it an official government account.
The Second Circuit Court of Appeals ruled that Trump could not block other users on Twitter. Trump appealed to the Supreme Court but it has not decided whether it will hear the case.
“We don’t intimate that the essential character of a Twitter account is fixed forever,” Arnold wrote. “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.”
In a dissent, Judge Jane Kelly wrote that Reisch switched from promoting her political career to communicating official business and therefore could not prevent people from posting critical messages.
“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,” Kelly wrote.
By making a comparison to Trump’s account, the court set a high bar for anyone to show their rights are violated, Magarian said.
“I get why they are talking about it, it is the biggest case on this issue,” he said. “But If you are going to use Trump’s deployment of Twitter, that is a really tough standard for most plaintiffs to clear because Trump literally governed by Twitter.”