• by Wendy Davis , Staff Writer @wendyndavis, February 11, 2021

A federal appellate court has handed public officials a blueprint for circumventing the First Amendment in order to block critics on social media.

That's according to lawyers for Missouri resident Mike Campbell, who is battling state Rep. Cheri Toalson Reisch over a Twitter block.

Campbell, a constituent of Reisch, claims the block violated the First Amendment, which prohibits government officials from discriminating against people based on political viewpoints.

The dispute reached the 8th Circuit Court of Appeals, which ruled 2-1 against Campbell.

The majority said Campbell lacked a valid First Amendment claim, ruling that Reisch hadn't acted as a government official when she blocked him. Instead, according to the court, Reisch's Twitter account was “unofficial,” because she used it “overwhelmingly for campaign purposes.”

That decision “creates a roadmap for savvy public officials to exclude unpopular viewpoints from their social media accounts simply by claiming to be engaged in 'campaign speech,'” Campbell's attorneys said Wednesday in a motion asking the court to reconsider.

The dispute dates to June of 2018, when Reisch tweeted that a political opponent “put her hands behind her back during the Pledge.”

A separate lawmaker, Kip Kendrick, then criticized Reisch's tweet, calling it “a low blow.”

Campbell re-tweeted Kendrick's criticism, following which Reisch blocked Campbell.

Campbell then sued Reisch, arguing that the lawmaker violated the First Amendment by blocking a constituent in retaliation for political speech.

Reisch sought to have the case dismissed at an early stage, arguing that her use of the account was personal, not official.

U.S. District Court Judge Brian Wimes in the Western District of Missouri rejected Reisch's request.

Wimes said in his 2019 ruling that 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.)

Reisch appealed to the 8th Circuit, which ruled in her favor last month.

“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.

They said Reisch set up her Twitter account before she was elected to office and used it primarily to campaign.

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

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.

Campbell's lawyers now argue that almost all comments made on social media by office holders could be framed as campaign-related.

“It is hard to conceive of any social media communication between a competent lawmaker and her constituents that would not harken back to a campaign promise,” they write.

The 8th Circuit is the third appellate court to address whether politicians violate the First Amendment by blocking constituents on social media.

In 2019, the 4th Circuit Court of Appeals said an official from Loudon County, Virginia violated a constituent's rights by briefly banning him on Facebook.

That same year, the 2nd Circuit Court of Appeals found that former President Donald Trump acted unconstitutionally when he blocked people on Twitter.

The Department of Justice initially sought to appeal that decision to the Supreme Court. But last month, the Justice Department said in new papers that the underlying dispute is moot, given that Trump is no longer in office. Nonetheless, the government is urging the Supreme Court to vacate the 2nd Circuit's decision, arguing that the ruling “blurs the lines between governmental and personal actions.”