Campbell v. Reisch

986 F.3d 822

Mike CAMPBELL, Plaintiff - Appellee

v.Representative Cheri Toalson REISCH, Defendant - Appellant

Electronic Frontier Foundation; Knight First Amendment Institute at Columbia University, Amici on Behalf of Appellee(s)

No. 19-2994

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2020

Filed: January 27, 2021

Rehearing and Rehearing En Banc Denied March 3, 2021

Counsel who presented argument on behalf of the appellant and appeared on the brief was Michael T. Raupp, of Kansas City, MO. The following attorney also appeared on the appellant brief; Lowell D. Pearson, of Jefferson City, MO.

Counsel who presented argument on behalf of the appellee and appeared on the brief was John Andrew Hirth, of Columbia, MO.

Counsel who presented argument on behalf of the amicus Knight First Amendment Institute at Columbia University, in support of the appellee, was Ms. Katherine Fallow, of New York, NY. The following attorneys also appeared on the amicus brief of Knight First Amendment Institute at Columbia University: Meenakshi Krishnan, of New York, NY; Jameel Jaffer, of New York, NY; and Alex Abdo, of New York, NY.

Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.

ARNOLD, Circuit Judge.

After Missouri state representative Cheri Toalson Reisch blocked Mike Campbell from her Twitter account, he sued her under 42 U.S.C. § 1983, claiming she had violated the First Amendment by denying him the right to speak. Following a bench trial, the district court agreed with Campbell, declared that Reisch had violated his rights, and ordered her to stop blocking Campbell and others because of the content or viewpoint of their speech. Reisch appeals, arguing, among other things, that Campbell is not entitled to § 1983 relief because she was not acting under color of state law when she blocked him. We agree with Reisch, and so we reverse and remand.

As the district court explained in its findings of fact, the social media platform Twitter allows its users to publish short messages, photographs, videos, and hyperlinks (all called tweets) to the general public. Other users may respond to or republish those tweets and engage in virtual dialogues with other users on the platform. They may even "follow" other users, and when they do, they will receive those users' tweets automatically on their feed, which is a continuously-updating scroll of new tweets from other users. But a user may also block certain followers, and if they attempt to follow or access the blocking user's page or messages, they will receive a message informing them of the block.

Reisch created her Twitter account in September 2015 when she announced her candidacy for state representative. Her very first utterance read, "I am proud to announce my candidacy to represent Missouri's 44th District. Let's work together & create opportunities for jobs & education." A few months later, she posted a copy of a letter on her campaign stationery seeking contributions to her campaign and a photo of herself with the Speaker of the Missouri House. As the district court observed, "[t]hroughout the first ten months of 2016, [Reisch] posted dozens of tweets about her campaign for the Missouri House, frequently using the hashtags #MO44 and #TeamCheri."

Reisch won her election in November 2016, and, over the next eighteen months, she tweeted about her work as a state representative and posted pictures of herself on the House floor or standing with other elected officials. Typical examples include a message where Reisch said she "was humbled to commit myself to represent everyone in the 44th District & uphold the Constitution of Missouri. #MOLeg." In another, she stated she was "[t]hrilled to have so many of my neighbors from the 44th District come by the office at tonight's energetic Governor's Ball! #MOLeg #MO44." She later forwarded a message from the House members of her political party saying they were "proud to deliver results during the first half of session that will bring job growth to MO. #moleg." Accompanied by a photograph of Reisch with the House Speaker, she once also posted, "I promised my neighbors in #MO44 that I'd work tirelessly to improve our #economy. I'm making good on that promise." She tweeted about specific legislation (such as Real ID, "Right to Work," and tort reform laws), about testifying before the state senate, and about times when the governor and lieutenant governor visited her district. Finally, she touted her performance as a representative, stating things like "[a]ccomplished much in my 1st 2 years, ready for the next 2" and, in relation to a legislative scorecard from a group called "United for Missouri," "I scored an A. Not bad for a Freshman." As the district court noted, Reisch "used her Twitter page to engage in discourse about political topics and/or to indicate her position relative to other government officials."

The message that Campbell identifies as the impetus for Reisch's block concerned her appearance at a local event that featured a pledge of allegiance to the flag. Reisch tweeted, "Sad my opponent put her hands behind her back during the Pledge." Another state representative responded the next day to say that Reisch's opponent's "father was a Lieutenant Colonel in the Army. Two of her brothers served in the military. I don't question [the opponent's] patriotism. That's a low blow and unacceptable from a member of the Boone County delegation." Campbell, one of Reisch's constituents, retweeted that response on his own page. He later received a message that Reisch had blocked him. The district court found that Reisch had also blocked at least 123 other Twitter users.

The First Amendment, by its terms, prohibits only governmental abridgment of speech. See Manhattan Cmty. Access Corp. v. Halleck , ––– U.S. ––––, 139 S. Ct. 1921, 1928, 204 L.Ed.2d 405 (2019). By not interfering with private restrictions on speech, the amendment "protects a robust sphere of individual liberty." Id. Similarly, " § 1983 excludes from its reach merely private conduct," in that, for a § 1983 claim to succeed, a defendant must have acted "under color of" state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). It is not enough that the defendant is a public official, because acts that public officials take in "the ambit of their personal pursuits" do not trigger § 1983 liability. See Magee v. Trs. of Hamline Univ. , 747 F.3d 532, 535 (8th Cir. 2014).

So the question this case presents is whether Reisch acted under color of state law when she blocked Campbell on Twitter. Campbell maintains that she did because she blocked him for criticizing her fitness for political office even though she had created a virtual forum for the public to discuss "the conduct of her office." Reisch says she didn't act under color of state law because she runs this Twitter account in a private capacity, namely, as a campaigner for political office. The district court concluded that Reisch had acted under color of state law, but along the way, the court appeared to agree that Reisch had used the account to further her campaign, and it relied on that fact to support its conclusion that Reisch had acted under color of law. Campbell does not defend this portion of the district court's opinion on appeal, and not without reason: Running for public office is not state action; it is a private activity. Campbell does say, though, that he is entitled to prevail nonetheless because Reisch acted under color of state law for other reasons. He also points out that Reisch did not rely on the campaign nature of her account in her argument before the district court, but given the district court's attention to the subject and given that Reisch has argued all along that she did not act under color of state law, we will consider her argument. See Weitz Co. v. Lloyd's of London , 574 F.3d 885, 890–91 (8th Cir. 2009).

The parties differ over the standards we should apply to determine if Reisch acted under color of law. Reisch maintains that "[a] public employee acts under color of law when [s]he exercise[s] power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law." See Magee , 747 F.3d at 535. She then argues that she did not use some power state law had granted her to block Campbell, and denies that state law had otherwise clothed her with authority to block him. Anyone, whether a state representative or not, can block someone on Twitter, and so, the argument runs, Reisch simply could not have acted under color of state law.

Campbell, on the other hand, asks us to take a more holistic view of the color-of-law question. He maintains that, for a defendant to act under color of law, her actions need only be "fairly attributable" to the State, which "is a matter of normative judgment" whose "criteria lack rigid simplicity." See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n , 531 U.S. 288, 295, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001). Campbell's approach finds support in two circuit court opinions dealing with social media blocks. See Knight First Amendment Inst. at Columbia Univ. v. Trump , 928 F.3d 226, 235–36 (2d Cir. 2019) ; Davison v. Randall , 912 F.3d 666, 679–80 (4th Cir. 2019). We do not decide which approach is correct because we think that, even applying the one Campbell advances, the record will not support a conclusion that Reisch acted under color of law.

Campbell encourages us to follow the path taken by Trump and Davison and conclude that Reisch acted under color of state law. In Davison , the chair of a local governmental board, Phyllis Randall, blocked a constituent from a Facebook page. 912 F.3d at 672–73. The page, titled "Chair Phyllis J. Randall," was created the day before Randall was sworn in as chair, and she designated the page "governmental official." Randall also had a personal Facebook page and a page devoted to her campaign. Id. at 673....