It’s a simple question: can a government official block a constituent on social media? Based on the Knight First Amendment v. Trump ruling in the Second Circuit, it looked like the answer was a decisive no. Instead, since then, the law has become chaotic. Courts are making increasingly fine or tendentious precedent distinctions to reach unpredictable results. This particular case goes in favor of the constituent, but several factors had to go right to reach that outcome.
The case involves Lewis Reed, the longtime President of the St. Louis Board of Aldermen (during this lawsuit’s pendency, he left the board and was convicted of taking bribes). Reed created the @PresReed Twitter account in 2009 and used it in a variety of official ways. There was some online chatter regarding a city-operated jail called the Workhorse. In January 2019, Felts contributed to that discussion by tweeting:
What do you mean by ‘change the messaging around #CloseTheWorkhouse,’ @PresReed? #STLBOA #aldergeddon2019 #WokeVoterSTL
Reed blocked Felts on the (seemingly pretextual) grounds that the “aldergeddon” hashtag threatened violence. Felts sued Reed for constitutional rights deprivation.
Is the Twitter Account a Government-Operated Account?
The court says yes:
not every social media account operated by a public official is a government account. That said, the essential character of a Twitter account is not fixed forever; it can turn into a governmental account if it becomes “an organ of official business.” Based on the record before it and applicable law, the Court concludes that Reed administered the Account under color of state law as an official governmental account.
Reed created the Account in 2009 with the handle @PresReed, a reference to the elected office he held. According to Reed, he typically used the account to “put out information for people to … let them know what I’m up to.” While Reed changed the handle at times to indicate his candidacy for office, unlike in Reisch, there is no evidence in the record of tweets from the Account reflecting a campaign use or that the Account was primarily used to communicate with friends and family as Reed asserted.
In 2019, with the use of City resources, Reed had the Account embedded within the City’s website, similar to those of other elected City officials. Reed’s profile on the City’s website was then linked to the Account, which included a live feed of his Twitter posts. Whether or not the Account was private at the time it was created in 2009, by the time it was embedded within the City’s website, the Account had clearly evolved into a “tool of governance.” The record demonstrates that Reed used the Account to issue press releases from his office; inform constituents about the introduction of bills to the Board of Aldermen; communicate with other government officials; solicit information from the public, inform his constituents of official matters; inform the public about important health and safety concerns in the City; and interact and engage with constituents regarding official policies.
The Account also bore certain “trappings” of Reed’s office. The Account included a link directing visitors to the webpage for the Office of the President of the Board of Aldermen, which in turn provided access to Reed’s official contact information, links to the City’s website, and posts about official activities.
Reed used City resources to operate and support the Account. City employees over whom Reed had supervisory authority had login credentials and authority over the Account, proposed and reviewed the content of tweets, posted tweets from the Account at Reed’s direction, and created graphics to be posted on the Account. While some of Reed’s staff also volunteered on his mayoral campaigns, no clear lines were drawn between their time spent as campaign volunteers or as City employees. In any event, Reed’s staff were clearly utilizing City resources to operate the Account, including working with the City’s IT department and web resources to set up a webpage for the President’s Office that included an embedded live feed of the Account on the City’s webpage.
Putting this all together, it’s pretty obvious that Reed was treating his Twitter account as part of his official government work. The court doesn’t have to address the more common Q: what if only one or two of these considerations were true? I expect some courts will say there’s no censorship if any one of the elements discussed above is missing, essentially turning this case into a high bar that few other cases will reach.
Because Reed operated the account as an official arm of the government, the court says his Twitter account became a designated public forum. The court is unpersuaded by Reed’s purported fear of potential violence from the hashtag:
The #aldergeddon reference in Plaintiff’s tweet was a hashtag used by journalists and elected officials to tag content related to the Board of Aldermen. It does not connote a violent intent and in no way formed a basis for Reed to block Plaintiff from the Account…
Reed’s decision to block Plaintiff from the Account based on the content of her tweet and to continue blocking her for months while the Account was clearly being used as a tool of governance is inconsistent with the First Amendment and amounts to viewpoint discrimination
The “geddon” suffix is used generically to describe a catastrophe of any type, not just violent activity. For example, remember the Los Angeles Carmageddon, which anticipated hugely snarled traffic? As a result, the more natural inference is that Reed didn’t like the online heat and chose to shut it down. The court could have been more explicit about this, but the point is that courts don’t always (and shouldn’t) accept pretextual justifications for censorial decisions.
The court summarizes:
Reed was the final decisionmaker for communications, including the use of social media, for the Office of the President of the Board of Aldermen. At or near the time Plaintiff was initially blocked, Reed’s public Twitter account had evolved into a tool of governance. In any event, by the time the Account was embedded into the City’s website in April 2019, while Plaintiff remained blocked, the Account was being operated by Reed under color of law as an official governmental account. The continued blocking of Plaintiff based on the content of her tweet is impermissible viewpoint discrimination in violation of the First Amendment.
The need for an injunction dissolved when Reed unblocked Felts and resigned from the board. Instead, Felts gets a court declaration that her rights were violated, $1 in nominal damages, and possibly attorneys’ fees. If I were a St. Louis resident, I’d be hopping mad to see my tax dollars misused to defend this case.
I have little respect for politicians who block their constituents. Constituent blocking just seems so thin-skinned, amirite? But this problem will not be fixed in court. Instead, the days of government officials running official social media accounts that enable constituents to talk back, especially on Twitter, seem numbered. Instead, they will adopt broadcast-only channels. While that will eliminate an irresistible temptation to censor, the unfiltered one-way delivery of propaganda won’t be an improvement.