This blog post was co-written by EFF Legal Fellow Houston Davidson.
It’s now common practice for politicians and other government officials to make major policy announcements on Twitter and other social media forums. That’s continuing to raise important questions about who can read those announcements, and what happens when people are blocked from accessing and commenting on important social media feeds. A new decision out of a federal appeals court affirms much of the public’s right to read and reply to these government communications, but muddies one particular, commonly occurring issue.
This case, Campbell v. Reisch, involves a Twitter account belonging to Missouri state representative Cheri Reisch. In 2018, Reisch blocked her constituent, Mike Campbell, after Campbell retweeted a comment critical of her. Campbell filed a lawsuit arguing that the First Amendment protects his right to access information from Reisch’s account, and asked the court to order Reisch to unblock him. Reisch appealed to the Eighth Circuit, claiming that Campbell had no First Amendment right to follow her account because it was her personal campaign account and not her official government account. EFF filed an amicus brief in support of Campbell, as did the Knight First Amendment Institute.
The Eighth Circuit joined other federal appeals courts that have addressed similar cases in acknowledging that the public has a right to access official communications on social media. Just as the Second Circuit found in Knight First Amendment Institute v. Trump, the Eighth Circuit concluded that even government officials’ nominally private accounts can in fact be used for official purposes—in which case it would violate the First Amendment for these accounts to block followers based on their viewpoints. The Eighth Circuit made it clear that “the essential character of a Twitter account” is not “fixed forever,” explaining that “[a] private account can turn into a governmental one if it becomes an organ of official business.”
However, these cases have also concluded that not every social media account maintained by a governmental official would necessarily be an “official” account. Reisch argued the account in this case was for her campaign, and thus maintained by her as a private citizen, not as a governmental official. Unfortunately, the Eighth Circuit agreed with Reisch, and concluded that the way Reisch used her Twitter feed was not enough to transform it into a government account.
We find this to be too narrow of a definition of a “governmental account,” and Judge Kelly, dissenting from her colleagues, agreed. As Judge Kelly details, once she was elected, Reisch used her account to report on new laws, provide information about the state legislature’s work, and interact with constituents. She also clothed the account “in the trappings of her public office,” including by describing herself in her bio as “MO State Rep 44th District,” and used Twitter’s blocking feature in order to silence criticism of her conduct of official duties or fitness for office. Judge Kelly thus would have found a First Amendment violation.
While the court’s reasoning on this point is questionable, the decision is limited to the facts of this particular official’s account and doesn’t affect those who wish to engage with accounts more commonly used to conduct official business.
We receive frequent requests for legal help from users who find themselves blocked by governmental officials, and the law in this area remains strong for those who want to follow or reply to governmental officials. We will work to make sure that this new decision remains limited to its unique facts. But users who are blocked from accounts that are arguably “personal” or “campaign” accounts should understand that their First Amendment rights may turn on the specific ways in which the official uses the account, and that determination can sometimes be hard to predict.