354 F. Supp. 3d 940
W.D. Wis.2019Background
- One Wisconsin Now (OWN), a political advocacy group, was blocked from the Twitter accounts of three Wisconsin State Assembly members (Kremer, Nygren, Vos) after using their interactive features to comment, reply, retweet, and monitor officials.
- The defendants operated public Twitter accounts that (among other indicia) identified them by office, linked to official legislative pages, posted about legislative matters and constituent events, and in some instances were maintained by staff on state time.
- OWN sued under 42 U.S.C. § 1983, alleging First Amendment violations from being blocked from the interactive portions of the officials’ Twitter feeds; parties filed cross-motions for summary judgment.
- The court found (a) defendants acted under color of state law in creating/operating their official Twitter accounts, (b) the interactive portion of those accounts is a designated public forum, and (c) blocking OWN constituted content-/viewpoint-based discrimination in violation of the First Amendment.
- The court granted OWN’s summary judgment motion on liability, denied defendants’ summary judgment, granted in part and denied in part a motion to strike portions of plaintiff’s expert report, and directed supplemental briefing limited to appropriate relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants acted under color of state law by creating/operating Twitter accounts | Accounts are entwined with official duties: created while in office, used to perform governance functions, linked to official websites, maintained with state resources/staff | Social media use is private: not an enumerated official duty, accounts aren’t state property, some activity occurs off-hours | Held: State action exists under the totality‑of‑circumstances test; accounts were operated under color of state law |
| Whether the interactive portion of the accounts is a designated public forum | Interactive features were intentionally opened for public discourse and are compatible with expressive activity | Twitter is private property; entire account should be treated as government speech, not a forum | Held: Interactive portion is a designated public forum; government‑speech doctrine does not subsume the interactive space |
| Whether blocking OWN was content/viewpoint discrimination | Blocking targeted OWN for its liberal viewpoint and prior speech; therefore unconstitutional | Blocks were legitimate moderation or government speech; defendants offered no compelling state interest | Held: Blocking was impermissible content/viewpoint discrimination; defendants failed to justify action under strict scrutiny |
| Appropriate relief/remedies | Seeks permanent injunction requiring defendants to unblock OWN and prohibiting viewpoint‑based blocking | Argues limits on court’s authority and potential mootness for Kremer | Held: Liability established; court ordered limited briefing on scope of relief and reserved remedy decision for later proceedings |
Key Cases Cited
- Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (social media is a "vast democratic forum" analogous to traditional public forums)
- Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (interactive portion of a public official’s Twitter account can be a public forum; government‑speech versus forum distinction)
- Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) (affirming that the interactive component of a government official’s social‑media page constituted a public forum and outlining factors for state‑action analysis)
- Surita v. Hyde, 665 F.3d 860 (7th Cir. 2011) (blocking a speaker from a designated forum for prior speech was content‑based and unconstitutional)
- Perry Educ. Ass’n v. Perry Local Educ. Ass’n, 460 U.S. 37 (1983) (standards for regulation of speech in designated public forums; content‑based exclusion subject to strict scrutiny)