• by Wendy Davis  @wendyndavis, January 27, 2021

A Missouri state lawmaker didn't violate the First Amendment by blocking a critic on Twitter, a federal appellate court ruled Wednesday.

In a 2-1 decision, the 8th Circuit Court of Appeals said state Rep. Cheri Toalson Reisch wasn't acting as a public official when she blocked constituent Mike Campbell after he retweeted criticism of Reisch.

The appellate judges said Reisch's Twitter account was an “unofficial account,” as opposed to a governmental account, because Reisch used the account “overwhelmingly for campaign purposes.”

The First Amendment prohibits the government -- but not private individuals or companies -- from censoring speech based on viewpoint.

“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,” Circuit Judges Steven Colloton and Morris Arnold wrote.

The decision marks the third time a federal appellate court has addressed whether politicians violate the First Amendment by blocking constituents on social media.

In 2019, the 2nd Circuit Court of Appeals found that former President Donald Trump acted unconstitutionally when he blocked people on Twitter. That same year, the 4th Circuit Court of Appeals said an official from Loudon County, Virginia violated a constituent's rights by briefly banning him on Facebook.

The battle over Reisch's use of Twitter stemmed from tweets posted in June of 2018, according to the court papers.

On June 22, Reisch tweeted that a political opponent, Democrat Maren Jones, “put her hands behind her back during the Pledge.”

The following day, state Rep. Kip Kendrick criticized that tweet as a “low blow,” adding that Jones' father and two brothers served in the military.

Campbell retweeted that post by Kendrick, following which Reisch blocked Campbell on Twitter.

Campbell then sued over the block, arguing that it violated his free speech rights.

U.S. District Court Judge Brian Wimes in the Western District of Missouri agreed with Campbell, ruling that Reisch acted in an official capacity when she used Twitter.

“The record demonstrates Defendant’s uses her Twitter account to indicate her positions on political issues, and to promote her campaign and legislative agenda,” Wimes wrote in a decision issued in August of 2019.

Wimes said Reisch's Twitter handle, @CheriMO44, referenced District 44, which she represents. Also, the photo associated with Reisch's Twitter account showed her on the floor of the Missouri state house. (Reisch appears to have deleted that account in February of 2019.)

Wimes also noted that Reisch had blocked 123 other Twitter users.

The appellate panel reversed Wimes' decision, ruling that Reisch didn't act “under color of state law” when she blocked Campbell.

The two judges in the majority emphasized that Reisch set up her Twitter account before she was elected to office and used it primarily to campaign.

The judges said Reisch “occasionally” used the account to update constituents about legislation, but concluded that those tweets were a form of self-promotion “because they show voters that she was actively advancing her legislative agenda and fulfilling campaign promises.”

“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,” the majority wrote.

Circuit Judge Jane Kelly dissented, writing that she believed Reisch “was acting under color of state law" when she blocked Campbell.

Kelly wrote that between January 2017 and February 2019, most of Reisch's tweets were about new laws, information about the state legislature, and her own official activities.

“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,” Kelly wrote.