One Wis. Now v. Kremer
| Decision Date | 18 January 2019 |
| Docket Number | 17-cv-0820-wmc |
| Parties | ONE WISCONSIN NOW, Plaintiff, v. Jesse KREMER, John Nygren, Robin Vos, in Their Official Capacities, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Aaron Dumas, Cullen Weston Pines & Bach LLP, Christa Oliver Westerberg, Lester A. Pines, Pines Bach LLP, Madison, WI, for Plaintiff.
Steven Carl Kilpatrick, Brian P. Keenan, Wisconsin Department of Justice, Gabe Johnson, Madison, WI, for Defendants.
Plaintiff One Wisconsin Now alleges that defendant Jesse Kramer, John Nygren and Robin Vos -- all elected members of the Wisconsin State Assembly -- violated the First Amendment by blocking it from their respective Twitter pages. Before the court are the parties' cross-motions for summary judgment. (Dkt. ## 27, 56.) For the reasons that follow, the court will grant plaintiff's motion and deny defendants' motion for summary judgment, leaving only the question of the appropriate scope of relief under the First Amendment to be decided.
Before turning to the parties' cross-motions for summary judgment, the court first addresses defendants' challenge to the testimony of plaintiff's expert Kathleen Bartzen Culver. (Defs.' Mot. to Strike (dkt. # 38).) Dr. Culver has a Ph.D. in mass communications and teaches at the University of Wisconsin's School of Journalism and Mass Communication. Defendants do not seek to strike portions of her report that fall within her area of expertise -- namely, how Twitter works -- but rather, to strike a number of paragraphs in her report, which they contend constitute inadmissible legal opinions. Specifically, defendants challenge Culver's opinions that: (1) political speech is afforded special deference in the United States; (2) Twitter presents a public forum; (3) defendants' use of Twitter is not government speech; (4) defendants' blocking of plaintiff constitutes state action, implicating First Amendment concerns; and (5) there are lesser restrictive alternatives. (Id. at 3-4 () In response, plaintiff acknowledges that Culver's testimony "occasionally and necessarily touch on the law," but argues that the "opinions are not so purely comprised of legal conclusions to be inadmissible." (Pl's Opp'n (dkt. # 52) 1.)
Generally, the court agrees that portions of the testimony defendants challenge either provide context for her subsequent discussion or use the law as a framework for discussing specific features of Twitter. For example, the first sentence of paragraph 11 simply summarizes her understanding of the questions presented by the current case and, as such, provides no opinions, legal or otherwise. Paragraph 18 also describes her understanding as to how Twitter activities can constitute political speech, and while relying on this understanding of the legal framework to couch her description of Twitter activities, the thrust of her opinions concern how citizens can use Twitter to engage in political discussions. Finally, paragraph 20 provides her overview of the different types of public forums, which then guides her analysis of Twitter in paragraphs 23, 24 and 25.
All of this challenged testimony is akin to other experts who, for example, set out the Georgia-Pacific factors or trademark infringement factors before analyzing each one. Indeed, the court finds the substance of Culver's descriptions as to the different parts of Twitter, which content is controlled by the Twitter account owner versus by others, and how an observer would understand the difference, potentially helpful and within her area of expertise. (Culver Rept. (dkt. # 26) ¶¶ 27-28.)1 Similarly, paragraphs 30, 32-34 describe the impact of blocking, as compared to other Twitter actions like muting or setting policies controlling Twitter feed comments. All of this also falls within her area of expertise and is helpful to the court.2
On the other hand, there are entire paragraphs of the report that simply describe caselaw in a way that is neither helpful to the court, nor within Culver's area of expertise. As such, the court will grant the motion -- and has not considered -- the following paragraphs: ¶ 10 (); ¶¶ 16-17 (); and ¶¶ 21-22 ().
Accordingly, the court will grant in part and deny in part defendants' motion. For the purposes of deciding the parties' cross motions for summary judgment, I have not considered paragraphs 10, 16, 17, 21 and 22, nor portions of other paragraphs in which Culver opines on ultimate legal questions or otherwise misstates current law.
Plaintiff One Wisconsin Now ("OWN") is a 501(c)(4) non-profit corporation based in Madison, Wisconsin. OWN self-identifies as a liberal organization, engaged in "issue advocacy and works to promote a vision of a Wisconsin with equal economic opportunity for all." (Pls.' PFOFs (dkt. # 29) ¶ 2.)
At the time the parties filed for summary judgment, defendants Jesse Kremer, John Nygren and Robin Vos were all Wisconsin State Assembly Representatives. Kremer resides in Kewaskum, Wisconsin, and represents the 59th Assembly District; Nygren resides in Marinette, Wisconsin, and represents the 89th Assembly District; and Vos resides in Burlington, Wisconsin, and represents the 63rd Assembly District. All three defendants maintain offices in Madison, Wisconsin.
Twitter is an online social media platform where users are able to "publish short messages, to republish or respond to others' messages, and to interact with other Twitter users in relation to those messages." (Pls.' PFOFs (dkt. # 29) ¶ 7.) The social media site has over 300 million users worldwide. There are approximately 70 million Twitter users in the United States.4
(Id. ¶ 11.) Provided by plaintiffs, the image below is an example of a Twitter user's timeline.
(Id. ¶ 12.)
An individual tweet can be up to 280 characters in length. In addition to the 280 characters, a tweet will contain the user's account name (which links to the user's timeline), the user's profile picture, the date and time the user generated the tweet, and the number of times other Twitter users have replied to, retweeted or liked/favorited the tweet. Tweets can also contain multimedia content such as photographs, videos and links.
All of a user's own tweets are displayed on the user's timeline. A user's most recent tweets are automatically published on the top of her timeline. A user can also display content from other Twitter users on her timeline by retweeting or quoting another user. If a user retweets another user, the other user's original tweet will appear on the retweeter's timeline along with the user's own tweets. The image below illustrates this concept:
(Id. at ¶ 9.) Users are also able to quote other users in their own tweets.
Twitter users can directly engage with other users in several ways. The most basic form of interaction is "following," which allows Twitter users to subscribe to other users' messages. Users that follow another user's Twitter account (called "followers") are notified when the user they follow publishes tweets on her timeline. Twitter users also can engage in more direct user interaction by replying to another user's tweet. Like a tweet, a reply can contain up to 280 characters and can include photographs, videos, and links. For instance, if User A tweets "I support candidate X," User B can reply directly to User A's tweet and say, "I disagree with you, I support candidate Y." When User B replies to User A's tweet, the reply will appear in two places: (1) User B's timeline under a tab called "Tweets & replies" and (2) on User A's timeline in a "comment thread" under the original tweet. Once a reply appears in a comment thread, any other Twitter user with access to User A's timeline can reply to either User A's tweet or User B's reply to the tweet. "Other users' replies to the same tweet will appear in the same comment thread, nested below the replies to which they respond." (Id. at ¶ 17.) Another way Twitter users can engage with each other is by "liking," also referred to as "favoriting," another user's tweet. (See, e.g. , Pl.'s Reply to Pl.'s PFOFs (dkt. # 49) ¶ 19.) Finally, a user can mention another user in a tweet by including the other user's Twitter handle in a tweet.
The original content of these interactive mechanisms (tweets, retweets, replies, likes and mentions) are controlled by the user who generates them. No other users "can alter the content of any retweet or reply," and other users "cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts." (Id. at ¶ 20.)5
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