Mike Campbell v. Representative Cheri Reisch
986 F.3d 822
8th Cir.2021Background
- Cheri Toalson Reisch created a Twitter account while campaigning (September 2015), used it heavily for campaign promotion, then continued similar posting after election as Missouri state representative.
- Reisch tweeted about political topics, legislation, and her official activities; she also used campaign-style hashtags and solicited donations pre-election.
- After Reisch criticized an opponent’s conduct during a Pledge-of‑Allegiance event, constituent Mike Campbell retweeted a response and was subsequently blocked by Reisch; the district court found she had blocked at least 123 users.
- Campbell sued under 42 U.S.C. § 1983 alleging Reisch, acting under color of state law, violated the First Amendment by blocking him from the interactive features of her account.
- After a bench trial the district court ruled for Campbell and ordered Reisch to stop viewpoint‑based blocking; the Eighth Circuit majority reversed, holding Reisch did not act under color of state law because the account was primarily a campaign/personal account. The panel remanded with instructions to enter judgment for Reisch. The dissent would have found state action and a First Amendment violation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Reisch acted "under color of" state law when she blocked users | Blocking was "fairly attributable" to the State because Reisch used the account to discuss office conduct and interact with constituents | Blocking is private action: anyone can block on Twitter; account was created and used as a campaign/personal account, not an official government account | No — account was primarily campaign/personal; blocking was not state action |
| Whether the account became an "official"/government account after election | Account functioned as a vehicle for constituent communication about official business, so it became governmental | Account’s primary character remained campaign/self-promotion; occasional official posts do not convert it | No — post‑election use stayed largely campaign/self‑promotion; not converted into an official account |
| Whether the interactive features created a designated public forum | Interactive comment/reply threads function as a forum for public discussion of official matters | Even if interactive, the owner may limit audience on a private/campaign page | Not reached as dispositive because court found no state action; majority treated account as private so forum analysis unnecessary |
| Whether blocking constituted viewpoint discrimination violating the First Amendment | Blocking critics of Reisch’s official conduct was viewpoint discrimination in a public forum | If account is private/campaign, blocking is private editorial control protected by First Amendment | Dissent: would have found viewpoint discrimination; majority did not reach a First Amendment ruling because no state action |
Key Cases Cited
- Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) (First Amendment protects against governmental, not private, abridgment of speech)
- American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) (§ 1983 reaches only conduct under color of state law)
- West v. Atkins, 487 U.S. 42 (1988) (defining acting under color of state law)
- Filarsky v. Delia, 566 U.S. 377 (2012) (fairly attributable state action can impose § 1983 liability)
- Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (official’s social‑media interactive features can create a public forum; blocking may be state action)
- Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) (governmental‑style social media pages used as tools of governance can create state action; viewpoint discrimination prohibited)
- Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288 (2001) (fair‑attribution test for state action involves normative judgment)
- Hurley v. Irish‑Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557 (1995) (private speakers control their message and audience; compelled inclusion not allowed)