The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SARAH FELTS, )
)
Plaintiff, )
)
vs. ) Case No. 4:20-CV-00821 JAR
)
LEWIS E. REED, )
)
Defendant. )
MEMORANDUM AND ORDER
This matter is before the Court on Defendant’s Motion for Certification of Interlocutory
Appeal Pursuant to 28 U.S.C. § 1292(b). (Doc. No. 24). Plaintiff opposes the motion and has
filed a written opposition (Doc. No. 27), to which Defendant has filed a reply. (Doc. No. 28).
The motion is fully briefed and ready for disposition. For the following reasons, the motion is
denied.
Background
Plaintiff filed a 42 U.S.C. § 1983 claim against Defendant Lewis Reed, President of the
St. Louis Board of Aldermen, alleging he violated her First Amendment Rights by blocking her
from his Twitter account in an act of viewpoint discrimination in a designated public forum.
Defendant moved to dismiss the claim (Doc. No. 11) on the grounds that his Twitter account is
private and that as a matter of law cannot be a designated public forum. Defendant further argued
that this Court lacks equitable jurisdiction over Plaintiff’s claims, and that blocking Plaintiff was
not action taken under color of law. On December 1, 2020, this Court denied Defendant’s motion
to dismiss, finding that Plaintiff had plausibly stated a claim that Defendant’s Twitter account is
a designated public forum; that the Court has equitable jurisdiction; and that Plaintiff plausibly
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stated a claim that Defendant’s use of Twitter’s blocking function is action under the color of
law. (Doc. No. 21).
On December 15, 2020, Defendant filed a motion for leave to file interlocutory appeal on
four questions:
1. Whether a personal Twitter account of a public official becomes a designated
public forum for purposes of the First and Fourteenth Amendments because
members of the public can access the account to post comments directed at the
public official and each other, such that the public official cannot exercise his
account rights to block individual members of the public from access to the
account?
2. Whether a public official’s use of a private Twitter account to express views is
“government speech” such that the public official is not required to allow free and
unrestricted access to the account to members of the public?
3. Whether a public official’s use of a personal Twitter account in accordance
with Twitter's rules, including the blocking of access as allowed by Twitter, is
state action subjecting the official’s use of the account to limitations by reason of
the Fourteenth Amendment?
4. Whether a federal court can compel a public official to grant unrestricted access
to his personal Twitter account without violating the official's own First
Amendment rights to control the views that are expressed through that personal
account?
(Doc. No. 25).
Legal standard
The general purpose of 28 U.S.C. § 1292(b) is “to provide interlocutory appeal in
exceptional cases in order to avoid protracted and expensive litigation.” Paschall v. Kansas City
Star Co., 605 F.2d 403, 406 (8th Cir. 1979); White v. Nix, 43 F.3d 374, 376 (8th Cir. 1994). The
burden is on the movant “to demonstrate that the case is an exceptional one in which immediate
appeal is warranted.” E.E.O.C. v. Allstate Ins. Co., 2007 WL 38675, at *2 (E.D. Mo. Jan. 4,
2007) (quoting White, 43 F.3d at 376). To satisfy § 1292(b) requirements, a case must involve an
issue that concerns “(1) a controlling question of law as to which there is (2) a substantial ground
for difference of opinion and upon which (3) a decision will materially advance the ultimate
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termination of the litigation.” Paschall, 605 F.2d at 406. The Eighth Circuit has emphasized that
“it is the policy of the courts to discourage piecemeal appeals because most often such appeals
result in additional burdens on both the court and the litigants.” E.E.O.C., 2007 WL 38675, at *2
(quoting White, 43 F.3d at 376). See also Control Data Corp. v. International Business Machines
Corp., 421 F .2d 323, 325 (8th Cir. 1970). It is within the trial court’s discretion to grant or deny
a motion for interlocutory appeal, and also within the discretion of the court of appeals to certify
the appeal. Id. Furthermore, the application for appeal “shall not stay proceedings in the district
court unless the district judge or the Court of Appeals or a judge thereof shall so order.” 28
U.S.C. § 1292(b).
Discussion
Defendant argues the Court’s order denying his motion to dismiss meets all three of the
requirements for certification. In response, Plaintiff notes that Defendant’s issues presume that
the facts contained within Plaintiff’s complaint are false. Specifically, Defendant presumes the
@PresReed Twitter account is private, while Plaintiff has alleged the account is public. Plaintiff
further argues that Defendant’s questions are either not questions of law or are questions about
which there is no substantial ground for difference of opinion.
Defendant is correct that there is substantial ground for difference of opinion about the
application of forum analysis to social media accounts. The Eight Circuit has yet to publish any
decision on the issue, although Campbell v. Reisch, a case currently pending before the Eighth
Circuit related to a Missouri State Representative blocking her constituent on Twitter, involves
many of the same issues. See Campbell v. Reisch, No. 19-2994 (8th Cir. Sept. 16, 2019).
However, an interlocutory appeal is inappropriate in this case because Defendant has
failed to satisfy the requirements of § 1292(b). A decision on the four questions Defendant seeks
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to certify will not materially advance the termination of this litigation. All four of Defendant’s
questions presume that Defendant’s Twitter account is personal or private, not public, yet this
Court previously found Plaintiff's complaint plausibly alleged that Defendant’s Twitter account
is a public account and that Defendant operates the account under color of law. The dispositive
legal question at this stage of litigation is not whether a private or personal Twitter account may
be subject to forum analysis, but rather whether a public Twitter account is subject to forum
analysis. Defendant does not contend that a public Twitter account is not subject to forum
analysis. Whether the @PresReed Twitter account is public or private cannot be determined
without development of a factual record. Certification is not appropriate where, as here, it will
not advance the termination of this litigation.
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion for Certification of Interlocutory
Appeal Pursuant to 28 U.S.C. § 1292(b) [24] is DENIED.
Dated this 19th day of January, 2021.
rahe ee
UNITED STATES DISTRICT JUDGE