Published on Aug. 23, 2024
In Felts v. Green, the United States District Court for the Eastern District of Missouri considered if a public official blocking a Twitter user constituted a violation of the Twitter user’s First Amendment rights.
By: Magdee (Alex) Besharat
Felts v. Green, 91 F.4th 938 (8th Cir. 2024).
I. Introduction
Social media comprises a large chunk of communication in the modern age.[1] It provides unprecedented accessibility to public officials. Easy accessibility creates a brand-new forum for discussion that those 30 years ago could not have imagined. However, with this new accessibility and forum comes a new way for the government to suppress the views of others and violate the First Amendment. Twitter is a social media platform that allows users to publish short messages called “tweets” that other users may interact with.[2] Users may interact by “retweeting” other users’ tweets on their own account, adding their own commentary to the tweets of another, or “liking” another’s tweet.[3] Users may “tag” another user by indicating the other’s Twitter account in their own tweet.[4] In Felts v. Green, the United States District Court for the Eastern District of Missouri considered if a public official blocking a Twitter user constituted a violation of the Twitter user’s First Amendment rights.
II. Facts and Holding
Sarah Felts (“Felts”) is a St. Louis, Missouri, resident with a Twitter account named @SarahFelts.[5] Lewis Reed (“Reed”) is the President of the St. Louis Board of Aldermen, a legislative body of the City of St. Louis that creates, passes, and amends local laws.[6] Reed had a public Twitter page including information about his political affiliation and his seat in office for the Board of Alderman in his biography, and information about his personal life such as his status as a father and husband.[7] Reed’s Twitter account’s name is @PresReed.[8] As a public Twitter page any member of the public could view, reply, retweet, or like Reed’s tweets.[9]
On January 26, 2019, @ActionSTL[10] tweeted asking Reed to clarify his position on a medium security prison and jailhouse closing in St. Louis including a statement by Reed regarding the topic stating, “we need to change the messaging around it.”[11] Felts tweeted asking Reed “[w]hat do you mean by ‘change the messaging around’ the closing of the two institutions.” Felts also tagged Reed by adding “@PresReed.”[12] Further, Felts added hashtag “Aldergedden 2019,” a hashtag commonly used by journalists and other officials in the St. Louis area when creating content related to the Board of Aldermen.[13] The closing of the facilitywas a political debate at the time of the tweet.[14] Both @ActionSTL and Felts were for the closing of the facility.[15] Reed’s response to Felts was to directly block her for the tweet.[16] Reed claimed he blocked Felts in response to her use of the “Aldergedden 2019” hashtag, which Reed believed implied violence against himself and the Board.[17] However, no evidence at trial was given to substantiate that belief.[18] Felts remained blocked until she sued Reed in his official capacity claiming that the blocking violated her First Amendment rights.[19]
The District Court held that Reed was acting under the color of state law in running his Twitter, i.e., that his actions were fairly attributable to the state.[20] It further held that Reed’s decision to block Felts from interacting with Reed’s Twitter account was a final policy decision of the Board of Alderman, making the City liable for Reed’s actions.[21] Ultimately, the Court ruled in favor of Felts, awarding her nominal damages of one dollar for violating her First Amendment rights.[22] The City of St. Louis appealed, arguing that Reed did not have the final policymaking authority to determine how the Board of Alderman handles social media pages.[23]
III. Legal Background
42 U.S.C. § 1983 allows a private actor to seek redress from a court for “the deprivation of any rights, privileges, or immunities secured by the Constitution.”[24] Redress under § 1983 may attach to a municipal for a single action of their policymaker if they possess “final authority to establish municipal policy with respect to the action ordered.”[25] Further, there must be a deliberate choice in a course of action where various alternatives were available regarding the subject matter.[26]
The First Amendment protects speech from government infringement from laws or policies.[27] The government may create forums for use by the public. When it creates a forum without setting policies on the regulation of content, the government has made a designated public forum.[28] In a designated public forum, the government cannot create a policy that discriminates on the viewpoint of a speaker.[29] The fact that an elected official, or other government actor, has a social media page does not necessarily mean that the government is creating a forum.[30] Rather, it is only when the official acts under the color of law which deprives a person of a right secured by the Constitution that § 1983 liability attaches to a City.[31] In the context of social media, the official acts under the color of law when the page is clothed in the “power and prestige” of his office.[32]
An official creates a policy when acting in his capacity as an officer, and takes actions that are unreviewable with final authority on a matter. The official is, in a sense, creating a policy for the office on how to handle such issues.[33] It is not necessary for the decisionmaker to intend that the policy extends beyond the incident to which he is responding.[34] This is true even if the policy is a single action by the official in that area of government the official manages.[35] To assess whether an official has final policymaking authority, the court reviews relevant legal materials, including local and state positive law, and usage or custom that has the force of law.[36]
The Eighth Circuit held that when a city official independently manages a social media page without any guiding policy or oversight and creates a policy through her actions, the city can be held liable under 42 U.S.C. § 1983 for any constitutional violations resulting from the policy.[37]
V. Comment
Reed’s decision to block Felts is considered an ordinary action in the realm of social media. However, whenever the government designates a forum for public discussion, it must not suppress the views of those participating, even if it finds the statement disagreeable.[38] In this case, the forum opened by the government refers to parts of the government’s social media page where users can interact, provided the official uses the social media page for official use.[39] The City chose not to appeal the fact that Reed’s Twitter account could be considered a personal account.[40] This was likely the right decision. Reed used his account for many official purposes, such as issuing press releases, informing constituents about new bills, communicating with other government officials, soliciting information from the public, informing the public about health concerns in the City, and engaging with the public about official policies.[41] Further, Reed even used public resources, his staff, to manage his social media page.[42] Had Reed used his account to manage his campaign and for other private purposes, then even if he used it for some official purposes, his account likely would not be considered “under color of state law.”[43]
Facing an uphill battle on whether Reed’s account is colored under state law, the City appealed only one of the trial court’s decisions: whether Reed had final municipal policy decision making in that area of the City’s business.[44] The City argued that Reed did not have the authority to make a final policy on behalf of the Board of Alderman even if he had the discretion to do so.[45] The Eighth Circuit disagreed, stating that Reed’s unique powers granted by the city charter gave Reed the ability to establish a final social media policy.[46] Reed’s power, coupled with no other city policy reaching Reed’s office nor another official’s review, made Reed’s choice to block a final policy for the City.[47]
The City’s error stems from giving too much discretion to the President of the Alderman and allowing officials to interact as officials on their social media page. Had the City created a policy that reached Reed or prevented him from acting in his official capacity on his social media page, then no liability could have attached to the City.[48] The lack of controlling policy coupled with its unreviewable nature made Reed’s actions the actions of the City, therefore making the City liable for Reed’s action of depriving dissenters of their First Amendment rights.[49]
St. Louis was liable for the actions of a single official, Reed. The City’s error was not controlling the actions of its officials and allowing officials to use personal Twitter accounts for official City business. In the modern age of social media, there is a new forum that municipalities and cities must be more mindful of by creating policies to guide officials in their social media presence.
[1] HOW HAS SOCIAL MEDIA EMERGED AS A POWERFUL COMMUNICATION MEDIUM?, University Canada West, https://www.ucanwest.ca/blog/media-communication/how-has-social-media-emerged-as-a-powerful-communication-medium/ (last visited Aug. 21, 2024).
[2] Felts v. Vollmer, No. 4:20-CV-00821 JAR, 2022 WL 17546996, at *2 (E.D. Mo. Dec. 9, 2022), aff’d sub nom. Felts v. Green, 91 F.4th 938 (8th Cir. 2024). Twitter is now called “X” but will be referred to as Twitter for this blog. Irina Ivanova, Twitter is now X. Here’s what that means, CBS News (July 31, 2023, 5:15 PM), https://www.cbsnews.com/news/twitter-rebrand-x-name-change-elon-musk-what-it-means/.
[3] Vollmer, 2022 WL 17546996, at *2.
[4] Id.
[5] Id.
[6] Board of Aldermen, STLOUIS-MO.GOV, https://www.stlouis-mo.gov/aldermen/index.cfm;
Vollmer, 2022 WL 17546996, at *2.
[7] Vollmer, 2022 WL 17546996, at *2.
[8] Id.
[9] Id. at *2, *3.
[10] @ActionSTL is a twitter account led by a local advocacy group in St. Louis. Id. at *3.
[11] Id. Though the tweet was in the form of a question, @ActionSTL did not “@” Reed. Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id.
[16] Id. Blocking is an action that a twitter user with a public account may take to prevent another from viewing the account and prevents the blocked party from participating with any content of the blocking party. Id. at *2.
[17] Id. at *3.
[18] Id.
[19] Felts v. Green, 91 F.4th 938, 940 (8th Cir. 2024).
[20] Vollmer, 2022 WL 17546996, at *9.
[21] Id. at *6.
[22] Id. at *10.
[23] Green, 91 F.4th at 942.
[24] 42 U.S.C. § 1983.
[25] Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986).
[26] Green, 91 F.4th at 943–44.
[27] U.S. Const. amend. I.
[28] Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001). Here, the district court’s ruling on the twitter feed being a designated public forum was not appealed. Green, 91 F.4th at 940, 942.
[29] Giebel, 244 F.3d at 1188.
[30] Campbell v. Reisch, 986 F.3d 822, 824 (8th Cir. 2021).
[31] Dossett v. First State Bank, 399 F.3d 940, 947 (8th Cir. 2005).
[32] Davison v. Randall, 912 F.3d 666, 681 (4th Cir. 2019).
[33] Felts v. Green, 91 F.4th 938, 943 (8th Cir. 2024).
[34] Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
[35] Green, 91 F.4th at 942.
[36] Id.
[37] Id. at 943.
[38] Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir. 2001).
[39] Garnier v. O’Connor-Ratcliff, 41 F.4th 1158, 1178 (9th Cir. 2022), cert. granted, 143 S. Ct. 1779 (2023), vacated and remanded on different grounds, 601 U.S. 205 (2024), abrogated by Lindke v. Freed, 601 U.S. 187 (2024).
[40] Green, 91 F.4th at 942.
[41] Felts v. Vollmer, No. 4:20-CV-00821 JAR, 2022 WL 17546996, at *8 (E.D. Mo. Dec. 9, 2022), aff’d sub nom;Felts v. Green, 91 F.4th 938 (8th Cir. 2024).
[42] Id. at *9.
[43] Campbell v. Reisch, 986 F.3d 822, 824 (8th Cir. 2021).
[44] Green, 91 F.4th at 942.
[45] Id. at 944.
[46] Id.
[47] Id.
[48] See generally id.
[49] Id.