Campbell v. Reisch

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

MIKE CAMPBELL, )

)

Plaintiff, )

)

v. ) Case No. 2:18-CV-04129-BCW

)

CHERI TOALSON REISCH, )

)

Defendant. )

ORDER

Before the Court is Defendant Cheri Toalson Reisch’s motion to dismiss. (Doc. #9). The

Court, being duly advised of the premises, denies said motion.

BACKGROUND

Plaintiff Mike Campbell brings a 42 U.S.C.§ 1983 claim against Defendant, Missouri state

representative Cheri Toalson Reisch, alleging that Reish violated his First Amendment rights by

blocking him from commenting on her Twitter account. Campbell seeks declaratory and injunctive

relief.

Under the allegations of Campbell’s first amended complaint (Doc. #22),1 Reisch is a State

Representative for the 44th District of the Missouri House of Representatives. Reisch uses a social

media platform Twitter. Reisch has operated a Twitter account under the handle2 “@CheriMO44”

since September 2015 (“Account”). Her Twitter profile states: “Christian, MO State Rep 44th

District, Mother, Grandmother.”

1 The instant motion was filed in response to Campbell’s original complaint (Doc. #1), alleging claims against Reisch

in her individual and official capacities and seeks damages. Campbell’s amended complaint asserts claims against

Reisch solely in her official capacity and does not pray for damages. The amended complaint is otherwise identical to

the original complaint, and the parties agree that this motion may be decided on the basis of the amended complaint.

2 A user handle is a unique account name, which consists of an @ symbol followed by a word or phrase (e.g.,

@RealDonaldTrump).

Twitter is a social media platform owned and operated by Twitter, Inc., with more than 300

million active users worldwide. Twitter enables users to publish short messages to the general

public called “tweets,” to republish or respond to others’ tweets, and to interact with other users.

Twitter users may “follow” other Twitter users. A followed user’s tweets automatically appear in

the following user’s Twitter feed – a continually updating scroll of new tweets from other users.

A user may comment on other users’ tweets, or “retweet” their tweets to her own followers. Twitter

also enables its users to block particular users from following their tweets. A blocked user who

attempts to follow the blocking user will see a message informing the blocked user about the

blocking.

Campbell, a resident of Centralia, Missouri, is registered to vote in Missouri’s 44th district,

for which Reisch sits. Plaintiff is active on social media platforms, including Twitter, which he

uses to follow and comment on posts by various state officials, including Reisch. Campbell alleges

that Reisch uses her Account to address her constituents, tout her accomplishments as a state

representative, and promote her political agenda. Some examples of such tweets alleged in the

complaint include: (i) a May 18, 2018 retweet of a message from House Speaker Todd Richardson

with the comment, “Thank you Mr. Speaker, you are a true gentleman. We worked hard and got

the job done”; (ii) a May 23, 2018 tweet, “Great to have Governor @EricGreitens & Hallsville

Mayor at the NRA Bianchi Cup today”; (iii) a June 13, 2018 tweet, “Accomplished much in my

1st 2 years, ready for the next 2.” Reisch also uses the account to tweet about various subjects of

personal interest to her.

On June 22, 2018, Reisch tweeted about her appearance at a public event, at which her

political opponent in the November 6, 2018 general election, Maren Jones, also appeared. Resich

tweeted “Sad my opponent put her hands behind her back during the Pledge.” On June 23, 2018,

Representative Kip Kendrick criticized Reisch’s tweet by commenting, “Maren’s father was a

Lieutenant in the Army. Two of her brothers served in the military. I don’t question [Maren’s]

patriotism. That’s a low blow and unacceptable from a member of the Boone County delegation.”

Campbell retweeted Kendrick’s criticism in Reisch’s Account. After this retweet, Reisch

permanently blocked Campbell from following or commenting on her Account.

Reisch also allegedly blocked dozens of other Twitter users from seeing or commenting on

her tweets, including many of her own constituents in the 44th House District.

Campbell claims that such blocking is an impermissible viewpoint-based restriction that

violates his free speech rights under the First and Fourteenth Amendments. In the instant motion,

Reisch moves the Court to dismiss Campbell’s complaint for insufficient pleading under Fed. R.

Civ. P. 12(b)(6).

LEGAL STANDARD

Under Fed. R. Civ. P. 8(a)(2), a pleading must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief.” “To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Iqbal, 556 U.S. at 678.

ANALYSIS

Reisch moves for dismissal of Campbell’s § 1983 claim, alleging that he failed to state a

claim upon which relief may be granted, because he failed to properly allege sufficient factual

matter to plead both of the “under the color of state law” and the “deprivation” elements of the

claim. Campbell responds that his allegations as to both elements are adequate under Fed. R. Civ.

P. 12(b)(b).

A. THE MOTION TO DISMISS IS DENIED.

To state a § 1983 claim, Campbell must plead that (1) “[he was] deprived of a right secured

by the Constitution or laws of the United States,” and (2) “the alleged deprivation was committed

under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999).

1. Campbell sufficiently alleged the deprivation element of his § 1983 claim.

The determination of whether Reisch deprived Campbell of his First Amendment free

speech right involves a three-step analysis: (1) whether the speech “is speech protected by the First

Amendment”; (2) “whether the putative forum is susceptible to forum analysis at all”; (3) the

forum’s classification. Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp.

3d 541, 564 (S.D.N.Y. 2018) (citing Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473

U.S. 788 (1985)) (other citations omitted).

The parties do not dispute that Campbell’s re-tweet constituted speech protected by the

First Amendment. Reisch contends, however, that dismissal under Fed. R. Civ. P. 12(b)(6) is

appropriate because (i) the public forum analysis does not apply to Reisch’s Account, because

Twitter, is owned by a private company; and (ii) Campbell failed to sufficiently allege that any

part of Reisch’s Account is a designated public forum since her only interest in the Account is a

license to use that Twitter can revoke at any time and for any reason; (iii) Campbell has not been

excluded from the interactive space within Reisch’s Account, because he can still respond to other

users’ comments within the Account. Campbell responds that the public forum doctrine is

applicable to a private space, like a website, based on government control, and that by using her

Account to address and seek comment from her constituents on matters of public concern, Reisch

created a designated public forum. Campbell further asserts that whether he was actually excluded

from the interactive space is irrelevant for purposes of a motion to dismiss.

a. The interactive space of the Defendant’s Account is susceptible to the forum analysis.

“For a space to be susceptible to forum analysis, it must be owned or controlled by the

government.” Knight, 302 F. Supp. 3d at 565 (citing Cornelius, 473 U.S. at 801). “[T]he

application of forum doctrine must be consistent with the purpose, structure, and intended use of

the space.” Id. The space may be “a forum more in a metaphysical than in a spatial or geographic

sense.” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995). It may

“lack[ ] a physical situs.” Cornelius, 473 U.S. at 801.

Reisch’s argument relating to the inapplicability of the forum analysis to her Account,

relies on Morgan v. Bevin, 298 F. Supp. 3d 1003 (E.D. Ky. 2018). In Bevin, plaintiffs claimed that

Kentucky Governor Matt Bevin violated their First Amendment rights by blocking them from his

Facebook and Twitter pages. Id. at 1005. The Bevin court noted that “Governor Bevin’s Twitter

and Facebook accounts are privately owned channels of communication” that “are a means for

communicating his own speech, not for the speech of his constituents,” and that are “not converted

to public property by the use of a public official.” Id. at 1011. The Bevin court held that because

Governor Bevin uses privately owned Facebook and Twitter pages for his personal speech, to

speak on his own behalf, albeit as a public official, “the First Amendment strictures that attend the

various types of government-established forums do not apply.” Id. at 1010–11 (quoting Walker v.

Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239, 2250 (2015)).

In opposition, Campbell urges the Court to adopt the forum analysis in Knight, 302 F.

Supp. 3d at 574–75, in which the Southern District of New York addressed whether President

Trump’s blocking of plaintiffs from following or commenting on his Twitter account violated

plaintiffs’ free speech rights. The Knight court determined that there are 3 components within each

Twitter account: (i) the content of the tweets; (ii) the timeline comprised of those tweets and the

comment threads those tweets initiate; and (iii) the “interactive space” associated with each tweet,

in which other users may directly interact with the content of the tweets. 302 F. Supp. 3d at 566.

The Knight court held the content of the tweets sent by Trump and “the account’s timeline, which

‘displays all tweets generated by the [account]’” are not subject to the forum analysis, because

these components represent government speech, which “is one category of speech that falls outside

the domain of forum analysis.” Id. at 571. However, the court further concluded that although

forum analysis does not apply to Trump’s Twitter account as a whole, it applies to “the interactive

space associated with each tweet in which other users may directly interact with the content of the

tweets.” Id. at 566. In so concluding, the Knight court noted that the President and his staff

exercised sufficient control over the account to satisfy the government-control requirement. Id. at

566.

The Court finds that the fact that Twitter is privately owned does not preclude a finding

that it is susceptible to the public doctrine analysis. The Supreme Court has held that “to evoke

First Amendment concerns,” “a speaker must seek access to public property or to private property

dedicated to public use to evoke First Amendment concerns.” Cornelius, 473 U.S. at 801

(emphasis added); see also Columbia Broad. Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94,

134 (1973) (“The First Amendment has also been held applicable where private parties control

essentially public forums.”).

Other courts that dealt with First Amendment violations in the context of social media

accounts and pages or their components, treated such accounts and pages as public spaces

susceptible to the public forum doctrine. See, e.g., Packingham v. North Carolina, 137 S.Ct. 1730,

1735 (2017) (comparing social media to traditional public fora such as parks and streets); Davison

v. Loudoun Cty. Bd. of Supervisors, 267 F. Supp. 3d 702, 716 (E.D. Va. 2017) (“When one creates

a Facebook page, one generally opens a digital space for the exchange of ideas and information.”);

Davison v. Plowman, 2017 WL 105984, at *3 (E.D. Va. Jan. 10, 2017) (“the Commonwealth’s

Attorney’s Facebook page qualifies as a limited public forum for First Amendment purposes”)

(citation omitted); Price v. City of New York, 2018 WL 3117507, at *15 (S.D.N.Y. June 25, 2018)

(“the City’s official Twitter pages share many characteristics of public forums [. . .]”: Twitter is

“generally open to the public”; appears to be “designed for and dedicated to expressive activities”;

and appears to have “as a principal purpose . . . the free exchange of ideas”).

Similarly, this Court believes that the public forum doctrine applies to Reisch’s Twitter

Account. In particular, the Court finds convincing the rationale in Knight that the interactive space

following each tweet in which other users may directly interact with the content of the tweets is

subject to forum analysis.

b. Forum classification is not necessary for purposes of the instant motion to dismiss.

Reisch next argues that she lacks the required ownership or control (i.e., some enforceable

property interest) over the Account to create a designated public forum, her only interest being a

revocable license to use Twitter services. Campbell insists that by using the Account to address

her constituents and inviting their replies in the interactive space, Reisch did create such a forum.

There are three types of public fora: traditional public fora, designated public fora, limited

public fora, and nonpublic fora. See, e.g., Pleasant Grove City, Utah v. Summum, 555 U.S. 460,

469-70 (2009).

As stated above, courts that dealt with this issue, have classified social media pages (or

their components) differently. However, for purposes of the motion to dismiss, the Court need not

decide which type of forum was created, because “[r]egardless of whether it occurs in a public,

designated, or nonpublic forum, viewpoint discrimination that results in the intentional, targeted

expulsion of individuals from these forums violates the Free Speech Clause of the First

Amendment.” Price, 2018 WL 3117507, at *16 (Rosenberger, 515 U.S. at 829); see also Davison

v. Randall, No. 17-2002, 2019 WL 114012, at *12 (4th Cir. Jan. 7, 2019) (refusing to decide

whether a Facebook page is a traditional or a designated public forum and stating that “viewpoint

discrimination” is “prohibited in all forums”).

c. Applicability of the forum analysis does not increase the risk of forum closure.

Reisch next argues, relying on Pleasant Grove, 555 U.S. 460, that the Court should dismiss

Campbell’s complaint, because unblocking him from her Account risks forum closure. In Pleasant

Grove, a municipality denied a private religious group’s request to allow it to erect a “monument

in a city park in which other donated monuments were previously erected.” 555 U.S. at 464. The

plaintiff religious group sought relief under the First Amendment, arguing that the city park

constituted a traditional public forum, and therefore that the city could not reject the religious

group’s proposed monument when it had previously allowed construction of a monument

associated with another religion. Id. at 466. The Supreme Court in Pleasant Grove held that “public

forum principles . . . are out of place” in the context of displaying donated monuments in a public

park, due to scarcity of space available in parks for such permanent displays. Id. at 479–80.

Campbell responds by relying on the Knight court’s analysis, which rejected the analogy

to Pleasant Grove. The Knight court held that posting comments in the interactive space of a

Twitter account is analogous to the idea of public parks accommodating a large number of

speakers, to which the “limited space” exception In Pleasant Grove does not apply. This Court

finds this rationale persuasive.

Further, to the extent Reisch argues that she might reasonably decide that no Twitter

account is better than one open to profane, racist, or obnoxious content, such viewpoint-neutral

restrictions are not at issue in this case. With all reasonable inferences drawn in Campbell’s favor

for purposes of this motion, he properly alleged that blocking amounts to a viewpoint-based

restriction. Knight, 302 F. Supp. 3d at 575.

d. The Court need not address whether Defendant’s actions amounted to Plaintiff’s

exclusion from the public forum.

Reisch also argues that Campbell has not been fully excluded from the interactive space,

because although he cannot respond directly to Reisch’s tweets, he can respond to other users’

commentary following Reisch’s tweets. As Campbell correctly argues, whether or not this

limitation actually amounts to a restriction violative of his First Amendment rights is not a proper

inquiry for purposes of a motion to dismiss. Therefore, the Court need not address this argument.

2. Plaintiff sufficiently alleged that Defendant acted under the color of state law.

Reisch also argues that Campbell insufficiently alleged the second element of his § 1983

claim – that she was acting under the color of state law. Reisch argues that (i) she does not operate

her account on behalf of the State and (ii) blocking a Twitter account is not an exercise of state

power. Campbell asks the Court to rely on the analysis in Knight, where the court addressed the

issue of state action together with the public forum analysis, concluding that “[b]ecause facilities

or locations deemed to be public forums are usually operated by governments, determining that a

particular facility or location is a public forum usually suffices to render the challenged action

taken there to be state action subject to First Amendment limitations.”

Section 1983’s “under color of state law” requirement has consistently been treated as

equivalent to the Fourteenth Amendment’s “state action” requirement. United States v. Price, 383

U.S. 787, 794 n.7 (1966).

To determine whether an official is acting under the color of law, courts “look to see

whether a sufficient nexus exists between the official’s public position and the official’s harmful

conduct.” Ramirez–Peyro v. Holder, 574 F.3d 893, 900 (8th Cir. 2009). “This nexus inquiry is

necessarily fact intensive . . . .” Id. at 901. “[G]enerally, a public employee acts under color of

state law while acting in his official capacity or while exercising his responsibilities pursuant to

state law.” Roe v. Humke, 128 F.3d 1213, 1215 (8th Cir. 1997) (internal quotation marks omitted).

“The [color of law] element is satisfied if the defendant acts or purports to act in the performance

of official duties, even if he oversteps his authority and misuses power.” Johnson v. Phillips, 664

F.3d 232, 240 (8th Cir. 2011). Purely personal pursuit is not attributable to the state. Screws v.

U.S., 325 U.S. 91 (1945).

The Court finds instructive the analysis on this issue in a recent decision of the Fourth

Circuit in Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). In that case, defendant Phyllis Randall,

who served as the Chair of the Loundoun County, Virginia, Board of Supervisors created and

administered a Facebook Page “Chair Phyllis J. Randall” (“Page”). Id. at 673. One of her

constituents, Brian Davison, similarly brought a § 1983 claim, asserting that Randall’s banning

him from the Page violated his free speech rights. Id.

The Fourth Circuit agreed with the district court’s conclusion that Randall acted under

color of state law based on the following findings: that Randall created and administered the Page

“to further her duties as a municipal official,” because she used the Page “as a tool of governance,”

by “provid[ing] information to the public about her and the Loudoun Board’s official activities

and soliciting input from the public on policy issues she and the Loudoun Board confront,” such

as “inform[ing] the public about serious public safety events,” “keep[ing] her constituents abreast

of the County’s response to a snowstorm and to coordinate snow removal activities.” Id. at 680

(citing Davison, 267 F. Supp. 3d at 713). The Fourth Circuit also quoted favorably the district

court’s findings that Randall:

swathe[d] the [Page] in the trappings of her office. Among other things, (1) the title

of the page includes [her] title; (2) the page is categorized as that of a government

official; (3) the page lists as contact information [her] official County email address

and the telephone number of [her] County office; (4) the page includes the web

address of [her] official County website; (5) many—perhaps most—of the posts are

expressly addressed to “Loudoun,” [her] constituents; (6) [she] has submitted posts

on behalf of the [Loudoun Board] as a whole; (7) [she] has asked her constituents

to use the [Page] as a channel for “back and forth constituent conversations”; and

(8) the content posted has a strong tendency toward matters related to [her] office.

Id. at 680-81 (citing Davison, 267 F. Supp. 3d at 714). The Fourth Circuit concluded that “Randall

clothed the . . . Page in the power and prestige of her state office, and created and administered the

page to perform actual or apparent duties of her office.” Id. at 681 (citations, internal quotation

marks, and brackets omitted).

In this case, similarly, Campbell’s allegations and reasonable inferences from them are

sufficient to plead that Reisch acted under color of state law. Campbell alleges that Reisch uses

her Account under the handle of @CheriMO44 “to address her constituents, tout her

accomplishments as a state representative, and promote her political agenda,” “to engage in

political discourse related to her official duties as a state representative” and “open[] her account

to comment by the general public.” In the Court’s view, these allegations are sufficient to plead

that Reisch acted under the color of state law.

To the extent Reisch argues that Campbell’s complaint fails to allege that the blocking of

Campbell was done in the “exercise of [a] right or privilege created by the State,” and thus under

the color of state law, Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982), the Court disagrees.

In addressing this argument, the Court again relies on the Fourth Circuit’s analysis in

Davison, 912 F.3d 666, which held that the specific actions of banning Davison “[we]re linked to

events which arose out of [Randall’s] official status” and that “the district court correctly held that

Randall acted under color of state law in banning Davison from the [Page].” Id. at 681 (citation

omitted). In arriving at this conclusion, the Fourth Circuit emphasized that Randall’s post to the

Page prompting Davison’s comment “informed the public about what happened at the Loudoun

Board and Loudoun County School Board’s joint meeting[,]” and that “Davison’s comment also

dealt with an issue related to that meeting and of significant public interest—School Board

members’ alleged conflicts of interest in approving financial transactions.” Id. The court further

stated that “Randall’s ban of Davison amounted to an effort to suppress speech critical of such

members’ conduct of their official duties or fitness for public office, which further reinforces that

the ban was taken under color of state law.” Id. (citation, internal quotation marks and brackets

omitted).

In this case, from Campbell’s allegations that Reisch tweeted about her appearance at a

public event and questioned the patriotism of her political opponent, Maren Jones, it is reasonable

to infer that she attended the public event and tweet about her political opponent in her capacity as

a public official. Thus, Campbell’s allegations create a reasonable inference that by blocking

Campbell in response to his criticism of her tweet regarding her opponent following her

appearance at a public event, Reisch was acting under the color of state law. Accordingly, it is

hereby

ORDERED Defendant’s motion to dismiss (Doc. #9) is DENIED.

IT IS SO ORDERED.

DATED: February 8, 2019

/s/ Brian C. Wimes

JUDGE BRIAN C. WIMES

UNITED STATES DISTRICT COURT