One Wis. Now v. Kremer

354 F. Supp. 3d 940
CourtDistrict Court, W.D. Wisconsin
DecidedJanuary 18, 2019
Docket17-cv-0820-wmc
StatusPublished
Cited by14 cases

This text of 354 F. Supp. 3d 940 (One Wis. Now v. Kremer) is published on Counsel Stack Legal Research, covering District Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
One Wis. Now v. Kremer, 354 F. Supp. 3d 940 (W.D. Wis. 2019).

Opinion

WILLIAM M. CONLEY, District Judge

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'

*942motion for summary judgment, leaving only the question of the appropriate scope of relief under the First Amendment to be decided.

PRELIMINARY ISSUE

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 (citing Culver Rept. (dkt. # 26); id. at 4 (listing specific paragraphs defendants seek to strike).) 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, *943paragraphs 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 (describing the Supreme Court's holding in Packingham v. North Carolina , --- U.S. ----, 137 S.Ct. 1730, 198 L.Ed.2d 273 (2017) ); ¶¶ 16-17 (describing the importance of political speech and reasons for that protection espoused by Alexander Meiklejohn); and ¶¶ 21-22 (describing political speech in other contexts and the Supreme Court's recognition of social media as a forum for political speech in Packingham ).

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.

UNDISPUTED FACTS3

A. The Parties

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.

B. Twitter

1. Overview

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

A Twitter user is an individual or entity who has created a Twitter account. Each Twitter user has an account name, which always consists of an "@" symbol and a unique identifier (e.g., @repvos). The account name is called a Twitter "handle." Each user also has her own timeline that displays her tweets, the date she joined Twitter, and "a button that invites other to 'Tweet to' the user." (Id. at ¶ 10.) The timeline may also include

a short biographical description; a profile picture, such as a headshot; a *944"header" image, which appears as a banner at the top of the webpage; the user's location; a button labeled "Message," which allows two users to correspond privately; and a small sample of photographs and videos poster to the user's timeline, which link to a full gallery.

(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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Homrich v. City of Wyoming
W.D. Michigan, 2025
Czosnyka v. Gardiner
N.D. Illinois, 2023
Brunson v. Capitol CMG, Inc.
M.D. Tennessee, 2023
Fasking v. Allen (CONSENT)
M.D. Alabama, 2023
Sgaggio v. De Young
D. Colorado, 2022
Sgaggio v. Weiser
D. Colorado, 2022
Clark v. Kolkhorst
W.D. Texas, 2020
Isaiah A. Green v. Commonwealth of Virginia
Court of Appeals of Virginia, 2020
Tanner v. Ziegenhorn
E.D. Arkansas, 2019

Cite This Page — Counsel Stack

Bluebook (online)
354 F. Supp. 3d 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/one-wis-now-v-kremer-wiwd-2019.