Lauren Boebert's private Twitter account is not a state actor | Strictly Legal

A woman in Colorado recently failed in her efforts to stop Lauren Boebert from blocking the plaintiff’s access to Boebert’s personal Twitter account. The Colorado based federal court concluded that Boebert was not engaging in “state action” when blocking the plaintiff.

On January 6, 2021, Brianna Buentello directed tweets at Boebert, criticizing public remarks Boebert made leading up to, during, and after the storming of the United States Capitol that occurred on that day. Boebert then blocked Buentello’s Twitter account from the @laurenboebert account. Having been blocked, Buentello can’t view Boebert’s @laurenboebert Twitter feed (at least when logged into the blocked account), and she cannot participate in discussions or threads spawned from tweets made from Boebert’s @laurenboebert account.

Boebert has another Twitter account: @RepBoebert, which was created by the Committee on House Administration and turned over to Boebert’s control in January 2021, when she assumed office as the Representative from Colorado’s 3rd Congressional District. Boebert did not block Buentello from that account.

Buentello brought her lawsuit alleging that being blocked from @laurenboebert violates her First Amendment rights. Boebert moved for summary judgment, before discovery even commenced, arguing that Buentello’s claims cannot proceed for a variety of legal reasons. Among those reasons, Boebert argued that there was no “state action” implicated by her blocking Buentello. The court agreed and noted that Buentello’s discovery requests amounted to a “fishing expedition” as she sought to depose members of Congress.

The First Amendment applies to governmental or “state” action. A private actor can’t be liable for a First Amendment violation.

This prompted the court to pose the question “[s]o . . . did the action complained of here, blocking Plaintiff from @laurenboebert, constitute official or state action?”

In answering the question, the court noted that Buentello had the burden of establishing that Boebert took the action to block Buentello’s access on behalf of the state. In the court’s view, she did not. As the court noted, “Defendant blocked Plaintiff on Defendant’s personal account (@laurenboebert), not Defendant’s official account (@RepBoebert).

"Defendant had authority to act on her personal account before taking office and will have that ability after leaving office. In contrast, Defendant did not have the power to block Plaintiff on the official account before taking office and will not have the ability to do so after leaving office.”

The court also noted that Boebert’s actions were not “made possible only because [she] is clothed with the authority of [federal] law." As the court noted, “personal social-media pages may be used by members of Congress to interact with constituents and make statements pertaining to their elected position without automatically converting actions taken on those pages from private behavior into state action.” The court compared a congressperson’s use of Facebook to “[visiting] the hardware store, [chatting] with neighbors, or [attending] church services.” Members of Congress undertake those activities without turning them into state action.

It was also significant that Boebert made it clear that her personal account was separate from her official account. As the court explained, “[t]he homepage for the account ... links to a campaign-fundraising page for Defendant, and self-describes Defendant as “Congresswoman for CO-03,” “Owner of Shooter’s Grill,” and “the mom who told Beto HELL NO.”

In contrast, the homepage for Defendant’s official @RepBoebert account, from which Plaintiff is not blocked, links to Defendant’s official House website and self-describes Defendant exclusively in reference to her role in Congress – referring to her as “Congresswoman (CO-03),” “Co-Chair #2A Caucus,” and "a member of several other House committees and caucuses.”

In short, because Boebert treated her personal account as a personal account, and not as an official site, she was free to block Buentello. As the court noted, while it may not be wise for Boebert to block a constituent, it’s not a First Amendment violation.

Jack Greiner is a partner at the Graydon law firm in Cincinnati. He represents Enquirer Media in First Amendment and media issues.

This article originally appeared on Cincinnati Enquirer: Lauren Boebert's private Twitter is not a state actor | Column