Campbell v. Reisch: The Dangers of the Campaign Loophole in Social-Media-Blocking Litigation
Clare R. Norins * & Mark L. Bailey ** | 25.1 | Citation: Clare R. Norins & Mark L. Bailey, Campbell v. Reisch: The Dangers of the Campaign Loophole in Social-Media-Blocking Litigation, 25 U. Pa. J. Const. L. 147 (2023).
In June of 2018, Missouri resident Mike Campbell criticized his state representative Cheri Reisch on Twitter. In response, Reisch permanently blocked Campbell from following or commenting on her Twitter account that she used to communicate with the public about her legislative duties and activities. This is a scenario that plays out repeatedly where government officials react to private parties whose speech they dislike by blocking them on social media or deleting their comments. Campbell filed suit against Reisch, alleging violation of his free speech rights. The district court agreed. Following a bench trial, the court found that Campbell was entitled to declaratory and injunctive relief. But the Eighth Circuit reversed, holding that because Reisch’s Twitter had started as a personal campaign account, and was still a vehicle for promoting her fitness for public office, she was free to block whomever she chose.
Since 2016, social-media-blocking litigation against government officials has been a lively and growing battleground for the First Amendment rights of free speech and petition. In April 2023, the Supreme Court granted certiorari in two social-media-blocking cases involving the personal accounts of government officials and so can be expected to weigh in on this issue in the coming term. Government officials increasingly rely on social media to communicate with the public because it provides a cost-effective method for quickly and timely relaying information while simultaneously engaging with large numbers of constituents. Reciprocally, ever greater numbers of private individuals are using the interactive features of government officials’ social media pages to voice their opinions and petition for change. Notably, social media allows internet users to express themselves and dialogue in real time, with both the government official who operates the account, and other viewers and commenters engaging with it. Perhaps not surprisingly, this has prompted some government officials to block those users whose comments they deem to be critical or offensive. However, this kind of speech regulation by a government actor introduces viewpoint discrimination—a cardinal sin under the First Amendment.
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* Assistant Clinical Professor and Director of the First Amendment Clinic at the University of Georgia School of Law
** 2022 J.D. graduate of the University of Georgia School of Law