JEFFERSON CITY — The lawsuit against state Rep. Cheri Toalson Reisch over blocking Twitter users remains alive after a U.S. District Judge Brian Wimes on Friday denied her motion to dismiss it.
The day before Wimes ruled, Reisch, R-Hallsville, filed a bill that would allow politicians who have been sued over their campaign activity to use campaign funds to defend themselves. The bill, as written, would allow Reisch to pay off legal debt in the case filed by constituent Mike Campbell of Centralia.
Reisch has said she has a legal defense fund and the proposal requires disclosure of contributors and the amounts paid.
“I probably should have had someone else file it, because I’m already going to hear the naysayers,” Reisch said in an interview. “They’re going to say, ‘Cheri, you filed this bill to benefit yourself.’ No, it won’t benefit me, but this may benefit people down the road.”
The suit is scheduled for trial on March 29 in Kansas City.
Campbell, an attorney, sued Reisch in June, alleging she violated his First Amendment rights by blocking him on Twitter after he retweeted a tweet that criticized her. At the time, Reisch was running for her second term in the House.
The case began when Reisch blocked Campbell after he retweeted Rep. Kip Kendrick’s criticism of from Reisch after she questioned the patriotism of her 2018 opponent, Maren Bell Jones.
Reisch also blocked Kendrick, and she unblocked both he and Campbell after the latter sued.
In a press release Monday, Reisch said she was “obviously disappointed” but not surprised that the judge did not dismiss the lawsuit.
In his ruling, Wimes rejected both legal grounds used by Reisch’s attorneys led by Lowell Pearson of Husch Blackwell. He wrote that “this Court believes that the public forum doctrine applies to Reisch’s Twitter Account” and that she was acting in her official role because she used it to promote her work and political views.
Public forum doctrine sets rules for who is allowed to speak in spaces owned or controlled by the government or set aside by private entities for public use, and how the government can or cannot restrict speech.
The dismissal was not a surprise to the plaintiff’s side, said Andy Hirth, Campbell’s attorney. Government and those acting for it cannot discriminate based on viewpoint in any type of public forum, physical or digital, Hirth said.
“There is no circumstance in which that is ever OK in a public forum, and that’s basically what happened here,” Hirth said. “That is a form of censorship and viewpoint discrimination that the First Amendment cannot abide.”
Reisch’s motion to dismiss the suit claimed her Twitter account is not a public forum.
“Creating a First Amendment right to access Ms. Reisch’s Twitter account would undermine, not promote, speech interests by risking closure of her account,” her attorneys wrote.
In the suit, Campbell is seeking a permanent injunction that would ban Reisch from blocking anyone on Twitter based on the content or political leanings of their tweets, according to the amended version of his complaint.
In September, Reisch briefly planned to use her campaign funds to pay her legal bills, but changed her mind. The Missouri Ethics Commission’s staff told her this use of funds was legal, she said at the time.
State law prohibits using campaign funds for personal expenses but does not directly address legal expenses for a candidate. The money can be used for “ordinary expenses” related to a campaign or “ordinary and necessary expenses” of holding office.
She worked with Liz Ziegler, the Missouri Ethics Commission’s executive director, for several months to draft the language of the bill, Reisch said.
The goal of Reisch’s bill is “to make it crystal clear that campaign funds can be used for frivolous litigation,” she wrote in the press release.
Missouri has a legal defense fund, created in 2005, that state employees can use to pay legal fees if they so choose. The state commissioner of administration makes these payments with the attorney general’s approval.
Reisch did not use the fund to make sure her own best interest was represented, she said.
Her attorneys at Husch Blackwell LLP could not be reached for comment.
Wimes’ ruling is a good sign for the case, Hirth said.
“I don’t really think we’re going to have any factual disputes,” he said. “The main question in this case was a legal one, and the judge has already answered it.”