(CN) — An ongoing debate over the First Amendment responsibilities of elected officials on social media made it to the Eighth Circuit on Tuesday afternoon, where attorneys sparred over whether public officials’ social media accounts are public forums.
The case was brought by Missouri resident Mike Campbell against his state representative, Cheri Reisch.The Republican who represents a district some 50 miles north of the state capital of Jefferson City blocked Campbell on Twitter in 2018 after he retweeted a criticism of her.
Campbell sued, arguing that Reisch’s Twitter page is a public forum and blocking him from it for a difference in viewpoint violated the First Amendment. U.S. District Judge Brian Wimes, a Barack Obama appointee, agreed and granted Campbell injunctive relief last year. Reisch quickly appealed to the St. Louis-based Eighth Circuit.
Representing Reisch, attorney Michael Raupp told the three-judge panel Tuesday that his client’s activity was distinct from that of President Donald Trump – who has faced similar legal battles and lost.
The circumstances of the Campbell block – in which Reisch tweeted out a criticism of her opponent, another person replied to her tweet critically, and Campbell retweeted the reply – did not involve any of Reisch’s official duties, he said.
“That was speech that was purely related to a campaign issue at a campaign function,” Raupp said. “Representative Reisch is one of 164 representatives in the Missouri House… when she simply speaks to constituents, no court has ever held that something that broad is a state action.”
Asked about what could be considered a state action on Twitter, Raupp was hesitant to specify. Announcing the hiring or firing of staff, he said, wouldn’t likely qualify. But he gave a little more ground when asked about the hypothetical of a lawmaker connecting a constituent with their staff.
“I think that gets closer. If, somehow, they were acting through Twitter to put someone in contact with someone else, I suppose that gets closer to state action,” Raupp said. “But I’m not sure that even at that point they’re doing anything under color of state law.”
Raupp also argued that Twitter’s own content restrictions and ability to remove users entirely meant that the First Amendment was inapplicable anywhere on the site, and that regardless individual legislators cannot open public forums.
Campbell was backed by the Knight First Amendment Institute, a Columbia University-based group focused on free speech issues in the digital age. In an amicus brief and in arguments Tuesday, senior staff attorney Katie Fallow urged the court to adopt the position of other circuits and took issue with Raupp’s contention that Reisch had not created a public forum.
“In determining state action, this court should examine Reisch’s act of blocking not in isolation, but in the context of all the other things she was doing with that account,” Fallow said during the hearing.
Reisch’s use of the account to discuss her official duties, Fallow argued, meant that its operation fell under color of state law. However, the judges prodded at the idea that Campbell had been excluded from the forum.
Senior U.S. Circuit Judge Morris Arnold, a George H.W. Bush appointee,noted that Campbell could simply read Reisch’s tweets without an account, or create a sock-puppet account to comment on them.
Fallow conceded that possibility, but said the block was still unconstitutional.
“This may not be the hugest burden on your speech, but it is a burden that’s imposed because of viewpoint discrimination,” she said. “Even if the burden is not huge, it’s still a burden that affects that person’s First Amendment rights.”
Arnold was joined on the panel by U.S. Circuit Judges Steven Colloton and Jane Kelly, George W. Bush and Barack Obama appointees, respectively. The judges did not indicate when they will issue a ruling in the case.
Attorneys for Reisch and Campbell did not respond to requests for comment.
Free speech issues on social media generally and Twitter in particular took on new urgency after the election of outgoing President Trump, who is involved in several cases regarding his block-heavy use of Twitter. Those and other cases over whether public officials can block their critics have yielded decisions on the topic from the Second Circuit and Fourth Circuit.
Both appeals courts held that if an account or page is used for public business, it is a public forum and constituents cannot be blocked from it because of their views. Trump is appealing the Second Circuit’s decision to the Supreme Court, and the Knight Institute has filed another suit against him alleging that he continued to block critics even after the court ordered him to stop.
Speaking before Tuesday’s hearing, Fallow said the impacts of a ruling in Reisch’s favor could have serious consequences for social media users.
“If the First Amendment is held not to apply to these new kinds of public forums, then the government will be able to censor dissenting voices that they don’t like from these new kinds of public squares,” she said. “You could have public officials or public agencies creating a distorted forum, where only people who agree with them are able to speak.”
She added, “That also impacts the interests of everybody who are interested in watching or reading the spectrum of beliefs in that public forum.”
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