Case 1:21-cv-00147-DDD Document 31 Filed 06/24/21 USDC Colorado Page 1 of 17

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO
Judge Daniel D. Domenico

Civil Action No. 1:21-cv-00147-DDD

BRIANNA BUENTELLO,

Plaintiff,
v.

LAUREN BOEBERT, in her official capacity,

Defendant.

ORDER DENYING MOTION

FOR PRELIMINARY INJUNCTION

Plaintiff Brianna Buentello alleges that United States Representa-

tive Lauren Boebert violated the First Amendment by blocking
Ms. Buentello from her “@laurenboebert” Twitter account.
Ms. Buentello asks the Court to order Representative Boebert to un-
block her. Because Ms. Buentello has not met the high bar required for
the extraordinary remedy of a preliminary injunction, the Court will not
interfere in the operation of Representative Boebert’s Twitter account.

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BACKGROUND

The material facts here are not in dispute.1 Lauren Boebert, then a
restauranteur in Rifle, Colorado, created a Twitter account with the
handle @laurenboebert on December 8, 2019. The same day, she an-
nounced her candidacy for U.S. representative for Colorado’s Third Con-
gressional District. (Doc. 27-1 at ¶ 2.) Her campaign was successful, and
she was declared the winner of the election on November 4, 2020. (Id. at
¶¶ 2, 8.) Before she assumed office in January 2021, the Committee on
House Administration created a separate, official Twitter account for
Ms. Boebert with the handle @RepBoebert. (Id. at ¶¶ 9–10.) She also
continued to use her @laurenboebert account. Representative Boebert
does not use government staff to operate the @laurenboebert account.
(Doc. 27-1 at ¶¶ 1, 3, 18.)

On January 6, 2021, Ms. Buentello directed tweets at Representative

Boebert, criticizing public remarks she made leading up to, during, and
after the storming of the United States Capitol that occurred on that
day. (See Doc. 1 at ¶¶ 51–55.) In at least one tweet, Ms. Buentello tagged

1 Ms. Buentello requested a hearing if Representative Boebert dis-

puted the facts asserted in her motion and declaration. (Doc. 2 at p. 4
n.3.) Representative Boebert does not dispute the material facts alleged
in the complaint, Ms. Buentello’s motion, or her declaration, as
Ms. Buentello appears to acknowledge on reply. (See Doc. 30 at pp. 1,
14.) Given that, the Court has decided the motion without a hearing.
Federal Rule of Civil Procedure 65(a) does not require the Court to hold
a hearing on a motion for a preliminary injunction, and whether to do so
is within the Court’s discretion. Carbajal v. Warner, 561 F. App’x 759,
764 (10th Cir. 2014); see also Reynolds & Reynolds Co. v. Eaves, 149 F.3d
1191, 1998 WL 339465, at *3 (10th Cir. 1998) (unpublished table deci-
sion) (no 10th Cir. authority requires court to hold evidentiary hearing
prior to granting or denying preliminary injunction); Local Civ. R. 7.1(h)
(motion may be decided without oral argument at court’s discretion).

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both Representative Boebert’s @laurenboebert Twitter account and her

official @RepBoebert House account. (Doc. 2-1 at ¶¶ 13–14.)

Representative Boebert then blocked Ms. Buentello’s Twitter ac-

count from the @laurenboebert account. (Doc. 1 at ¶ 55.) While logged in
to her blocked account, Ms. Buentello cannot view Representative Boe-
bert’s @laurenboebert Twitter feed, and she cannot directly participate
in discussions or threads spawned from tweets made from the @lau-
renboebert account. (Doc. 2-1 at ¶ 16.) Ms. Buentello alleges that Repre-
sentative Boebert blocked her because of Ms. Buentello’s views on the
storming of the U.S. Capitol and Representative Boebert’s response. (Id.
at ¶ 57.)

Representative Boebert did not block Ms. Buentello from the official
@RepBoebert House account, and Ms. Buentello can fully view the
@RepBoebert feed and participate in discussions created by that ac-
count’s tweets. Since taking office, Representative Boebert has used her
@laurenboebert account to discuss political issues, her legislative
agenda, and bills she has introduced. (See Doc. 29 at pp. 2–4 (collecting
tweets).)

LEGAL STANDARD

“A preliminary injunction is an extraordinary remedy, the exception

rather than the rule.” Mrs. Fields Franchising, LLC v. MFGPC, 941 F.3d
1221, 1232 (10th Cir. 2019). One may be granted “only when the mo-
vant’s right to relief is clear and unequivocal.” McDonnell v. City & Cty.
of Denver, 878 F.3d 1247, 1257 (10th Cir. 2018). To prevail on her mo-
tion, Ms. Buentello must show: (1) that she is “substantially likely to
succeed on the merits” of one or more of her claims; (2) that she will
“suffer irreparable injury” if the court denies the injunction; (3) that her
“threatened injury” without the injunction outweighs Ms. Boebert’s

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under the injunction; and (4) that the injunction is not “adverse to the
public interest.” Mrs. Fields, 941 F.3d at 1232; accord Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctions that would change
the status quo are disfavored and require the movant to meet an espe-
cially heightened burden. Mrs. Fields, 941 F.3d at 1232.

ANALYSIS

Representative Boebert’s opposition to the preliminary-injunction

motion rests primarily on her contention that blocking Ms. Buentello’s
account from her @laurenboebert account was done in her personal ca-
pacity, not in her official capacity or by anyone on her congressional
staff. Ms. Buentello initially sued Representative Boebert in both her
official and individual capacities. (Doc. 1 at p. 1.) But she has since vol-
untarily dropped her individual-capacity claims. (Doc. 18.)

I. First Amendment Claim

A. Cause of Action

Ms. Buentello’s official-capacity claim for violation of the First

Amendment raises a fundamental question: What authority empowers
a district court to enjoin the actions of a sitting member of Congress act-
ing in her official capacity? Although 18 U.S.C. § 1331 grants this Court
jurisdiction to hear claims arising under the Constitution, it is unclear
what cause of action Ms. Buentello relies on as a basis to enjoin Repre-
sentative Boebert from violating the Constitution. Ms. Buentello sug-
gests that there exists an implied cause of action under the Constitution
for equitable remedies. But Ms. Buentello cites no decision of any court
enjoining a member of Congress in her official capacity; nor has the
Court found any. The extent to which the Constitution implies a cause
of action to enforce its provisions remains open. See Douglas v. Indep.

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Living Ctr. of S. Cal., Inc., 565 U.S. 606, 619 (2012) (Roberts, C.J., dis-
senting) (noting that it is unsettled “whether and when constitutional
provisions as a general matter are directly enforceable”). Ms. Buentello’s
assumption that the Court may enjoin Representative Boebert merely
by leaning on its general equitable powers runs counter to the axiom
that “equity follows the law.” Id. Article III “does not extend the judicial
power to every violation of the constitution which may possibly take
place.” Cohens v. Virginia, 19 U.S. 264, 405 (1821). The law must instead
provide a judicially cognizable right to relief for the violation. See Collins
v. Yellen, No. 19-422, slip op. at 3 n.1 (U.S. June 23, 2021) (Thomas, J.,
concurring). That Congress provides aggrieved plaintiffs explicit causes
of action to assert constitutional claims in other contexts,2 but not in this
context, suggests there is none.

The Court is particularly sensitive to this issue in this case because

it involves the judiciary’s ability to enjoin allegedly official actions of a
member of the legislative branch. And, as the Supreme Court has
warned, “When a party seeks to assert an implied cause of action under
the Constitution, separation-of-powers principles should be central to
the analysis.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

Representative Boebert nevertheless does not ask the Court to decide

these questions. Instead, she relies on a more well-established doctrine
to oppose the injunction: state action.

2 See, e.g., 5 U.S.C. §§ 702, 706(2)(B) (providing cause of action to chal-

lenge agency actions alleged to be “contrary to constitutional right,
power, privilege, or immunity”).

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B. State Action

The First Amendment’s protection of the People’s right to free

speech, like other rights protected by the Constitution, is implicated only
when the government, not a private entity or individual, regulates
speech. Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928
(2019). This precondition for a constitutional claim is known as the
“state action” requirement. To succeed on her free-speech claim, there-
fore, Ms. Buentello must show that Representative Boebert’s decision to
block her from interacting with the @laurenboebert account was an act
attributable to the state, not a private individual. “[C]areful adherence
to the ‘state action’ requirement preserves an area of individual freedom
by limiting the reach of federal law and federal judicial power.” Lugar v.
Edmondson Oil Co., 457 U.S. 922, 936 (1982).

To constitute state action, the alleged deprivation of a right “must be

caused by the exercise of some right or privilege created by the State . . .
or by a person for whom the State is responsible,” and “the party charged
with the deprivation must be a person who may fairly be said to be a
state actor.” West v. Atkins, 487 U.S. 42, 49 (1988). The distinction be-
tween private and state action is a “fact-bound inquiry” that depends on
whether there is “a close nexus between the State and the challenged
action.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531
U.S. 288, 295, 298 (2001).

Both sides appear to agree that had Ms. Boebert blocked

Ms. Buentello prior to taking office, or at least prior to winning her elec-
tion, that would not have amounted to state action. Before then,
Ms. Boebert clearly had no government title or authority. Ms. Buentello
argues, however, that at some point after the election, at the latest when
Ms. Boebert took office, the character of the @laurenboebert account

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transformed from that of a private individual to a vehicle for official gov-

ernment business, such that blocking Ms. Buentello from commenting
on the @laurenboebert account on January 6, 2021 constituted state ac-
tion. But the unrebutted evidence shows that no government staff oper-
ate the @laurenboebert account.

1. Authority of Members of Congress to Act on Behalf of

the State

Neither the Supreme Court nor the Tenth Circuit has yet analyzed
state action in the context of social-media blocking. Lacking controlling
precedent, Ms. Buentello cites out-of-circuit authority. One decision she
relies on involved the chair of a county board who blocked and banned a
constituent from participating on the “county Facebook page.” Davison
v. Randall, 912 F.3d 666, 673 (4th Cir. 2019), as amended (Jan. 9, 2019).
There, the Fourth Circuit agreed with the district court’s finding that
the chairwoman was “acting under color of state law” pursuant to 42
U.S.C. § 1983. Id. at 679–81. The circuit and district court looked to
things such as the title of the social-media page, the page’s categoriza-
tion on Facebook, the contact information listed on the page, and the
content of the page’s posts to determine whether a ban or block consti-
tuted state action. Id. at 678–81.

In another decision, the Second Circuit relied on similar factors to

determine that former-President Donald Trump’s blocking of a constit-
uent on Twitter amounted to state action. Knight First Amend. Inst. at
Columbia Univ. v. Trump (Knight), 928 F.3d 226, 234 (2d Cir. 2019),
cert. granted, judgment vacated as moot sub nom. Biden v. Knight First
Amend. Inst. at Columbia Univ. (Knight II), 141 S. Ct. 1220 (2021). The
court noted that there was “substantial and pervasive government in-
volvement with, and control over” the relevant Twitter account. Id.
at 235. Factors favoring a finding of state action, according to the Second

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Circuit, included: the account’s reference to the official @POTUS ac-

count, the then-President’s use of Twitter as a “tool of governance and
executive outreach,” his use of Twitter to engage with foreign officials,
his use of Twitter to hire and fire staff, and his use of Twitter to an-
nounce changes to national policy. Id. at 235–36. The Second Circuit’s
decision was vacated by the Supreme Court, and so no longer has any
legal effect, but the Court has taken it into account as at least a thought-
ful, if now academic, approach to the question.

The Court nevertheless has doubts about whether the text of the
Constitution supports a process of adding up the content of an official’s
social-media posts to determine whether some critical mass of state ac-
tion has been reached that would make the entire operation of the ac-
count state action. These factors might tell us if an official is using an
account for official business, but that seems far afield from answering
the question of whether a member of Congress’s blocking a Twitter fol-
lower meets the requirements for state action the Supreme Court laid
out in West. That an account might be used for official purposes in one
instance does not necessarily turn everything the account holder does
into state action (just as, for example, a public official’s use of a particu-
lar phone to take various official actions would not be determinative of
whether every action taken on that phone amounted to state action).
Perhaps with an official account of the type the House created for Rep-
resentative Boebert, blocking a user might be considered “the exercise
of some right or privilege created by the State.” 487 U.S. at 49. But the
same does not necessarily follow for an account created by an individual,
which is what is at issue here. Nor can it be argued that in general “the
State is responsible” for the actions of members of Congress. Id. (finding
that State was responsible for doctor employed as contractor for state

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prison). Members of Congress, acting as a group through the legislative

process, are responsible for the actions of the state, not the reverse.

Ultimately, “the party charged with the deprivation must be a person

who may fairly be said to be a state actor.” West, 487 U.S. at 54. What
all these cases show is that it is not enough for the “actor” to be drawing
a government paycheck, or even to be someone who has some authority
to act on behalf of the state. The particular action in question must, to
implicate the Constitution, be undertaken on behalf of the state.

Representative Boebert, or any member of Congress, has almost no

power to act on behalf of the United States government. Her authorized
powers, and those of her colleagues, are important, but few. She can par-
ticipate in the election of the Speaker of the House and other House Of-
ficers. U.S. Const. art. I, § 2, cl. 5. She can propose bills (including the
exclusive power, along with her fellow Representatives, to initiate reve-
nue bills) and vote on bills. See id. art. I, § 7, cl. 7. She can vote on arti-
cles of impeachment of the President and other civil officers. Id. art. II,
§ 4. And she can vote for the President if a majority of the electoral col-
lege fails to elect a candidate. Id. amend. XII. Those are profound pow-
ers, and ultimately Congress as a whole is in control of the ship of state.
But its individual members, unlike executive branch officials, generally
do not have authority to act on behalf of the state.3

3 Members of Congress do have some narrow powers under federal

statute to act on behalf of the state. Representatives can, for example,
hire and fire staff, 2 U.S.C. § 4101, and nominate candidates to the U.S.
military academies, see, e.g., 10 U.S.C. § 9442(a)(4) (governing nomina-
tions to United States Air Force Academy). These are the sorts of things
that could qualify as state action under West. And the use of the House-
created @RepBoebert account might be analogous. But that, of course,
is not the account at issue here.

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Davison and Knight both involved the accounts of executive-branch

officials, limiting the applicability of those decisions here. Legislators’
authority to act on behalf of the state is much more limited than that of
executive-branch officials. See Campbell v. Reisch, 986 F.3d 822, 827
(8th Cir. 2021). The President, for example, acts on behalf of the govern-
ment in any number of areas; indeed, that is the basic function of the
executive. See U.S. Const. art. II; Nixon v. Fitzgerald, 457 U.S. 731, 749–
50 (1982). The “official capacity” of a member of the executive branch is
categorically dissimilar from the “official capacity” of a member of Con-
gress—not just in degree, but in kind.4

Put simply, legislators legislate. Their state-created powers are to

propose legislation and to vote—and little else. Blocking a Twitter user
on an account created before she was elected to office is something
Ms. Boebert could do before she was in office and could do after she
leaves office. If the defendant’s position in government makes no differ-
ence to her ability to take the action in question, it is hard to see how
the action could be deemed to be one taken under authority created by
the state or on its behalf. It is not a state-created right or privilege and
therefore cannot constitute state action. Perhaps her ability to hire and
fire staff might have been relevant to the extent Representative Boebert
employed government staff to administer her @laurenboebert Twitter
account. But the unrebutted evidence says she did not. (Doc. 27-1 at
¶¶ 1, 3, 18.) Given that, Ms. Buentello has not pointed to any state ac-
tion involved in Representative Boebert’s blocking of her on Twitter.

4 Those cases are further distinguishable because both defendants

used government staff to operate the social-media pages in question. Da-
vison, 912 F.3d at 673; Knight, 928 F.3d at 235.

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The First Amendment states that “Congress shall make no law . . .

abridging the freedom of speech . . . .” U.S. Const. amend. I (emphasis
added). Congress, not its individual members, commands the federal
government, and it is that body that the First Amendment sought to
constrain. Individual legislators do not have the constitutional power to
either make law or abridge speech, and thus their individual actions are
not within the First Amendment’s coverage. Even without the Supreme
Court’s admonishment to be particularly sensitive to separation-of-pow-
ers concerns in cases like this, see Ziglar, 137 S. Ct. at 1857, this fact
would be enough to distinguish Davison, Knight, and the district-court
decisions applying those cases.5

Ms. Buentello cites several decisions involving social-media blocking

by state-level and municipal-level legislators. To the extent those cases
simply apply the holdings in Davison and Knight to individual legisla-
tors, the Court finds them unpersuasive. Those decisions involving state
rather than federal officials are also distinguishable because they were
brought under 42 U.S.C. § 1983 and the Fourteenth Amendment rather
than directly under the Bill of Rights. See Lugar, 457 U.S. at 935 n.18
(holding that constitutional state action under the Fourteenth Amend-
ment necessarily constitutes action “under color of state law” for pur-
poses of Section 1983, but not vice-versa); Flagg Bros. v. Brooks, 436

5 See Texas v. Rettig, 993 F.3d 408, 417 (5th Cir. 2021) (Ho, J., dissent-
ing from denial of rehearing en banc) (“As judges, we have sworn an oath
to uphold the Constitution. So if we are forced to choose between uphold-
ing the Constitution and extending precedent in direct conflict with the
Constitution, the choice should be clear: Our duty is to apply the Con-
stitution—not extend precedent.” (brackets and internal quotation
marks omitted)); see also Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th
Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)
(arguing that lower courts have a “duty to interpret the Constitution in
light of its text, structure, and original understanding” in absence of
binding precedent).

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U.S. 149 (1978) (noting that “under color of state law” and state-action
analyses are “two separate areas of inquiry”). Several of the other legis-
lator decisions that Ms. Buentello cites are distinguishable based on
their procedural and factual posture. For instance, in Windom v. Harsh-
barger, 396 F. Supp. 3d 675, 685 (N.D. W. Va. 2019), the court weighed
the Davison factors and concluded that those factors weighed against a
finding of state action, but nevertheless found it “premature” to dismiss
on a Rule 12(b)(6) motion. In Felts v. Reed, No. 4:20-CV-00821 JAR, 2020
WL 7041809, at *6 (E.D. Mo. Dec. 1, 2020), the court found only that the
plaintiff stated a plausible claim that an alderman’s social-media block-
ing constituted state action.

2. Representative Boebert’s Use of @laurenboebert

Representative Boebert’s use of her Twitter account is distinguisha-

ble in other ways from the challenged uses in the decisions cited by
Ms. Buentello. The facts surrounding the @laurenboebert account are
more akin to the situation analyzed in Campbell v. Reisch. In that Sec-
tion 1983 case, the Eighth Circuit held that a state representative’s
blocking of a constituent on Twitter was not state action. 986 F.3d at
825. The court noted that the state representative mostly used the ac-
count for campaign purposes, as is the case here. Id. (finding that occa-
sional “stray” post-election tweets relating to representative’s official ac-
tivities did not render the blocking state action). Ms. Buentello cites
many of Representative Boebert’s tweets, noting that they discuss polit-
ical issues such as legislation, the federal budget, her legislative agenda,
and, perhaps most frequently, her political opponents. (Doc. 29 at
pp. 2–4.) But these are the same kinds of issues Ms. Boebert raised on
the campaign trail—the same sorts of tweets found insufficient to trans-
form a private account into a state account in Reisch. Unlike a president,
who might be able to author tweets that have some legal effect (say,

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when announcing an executive order via Twitter), Representative Boe-

bert’s tweets have not had any binding, legal effect—primarily because
she is a legislator without the authority to unilaterally bind anyone. The
record contains no evidence that she has announced changes in national
policy or hired or fired staff via her account, for instance, as was the case
in Knight.6 So even under Ms. Buentello’s proposed doctrinal frame-
work, Representative Boebert’s blocking does not satisfy the require-
ments of state action. The government does not authorize her to run this
Twitter account, and her use of the account does not amount to action
on the government’s behalf.

Nor does Ms. Buentello’s claim appear to implicate any Tenth Circuit
caselaw developed to address when a litigant seeks to hold a private
person accountable as a state actor. The Tenth Circuit has developed
four tests for that situation: the “nexus test,” the “public function test,”
the “joint action test,” and the “symbiotic relationship test.” Wittner v.
Banner Health, 720 F.3d 770, 775 (10th Cir. 2013). The “nexus test” asks
whether the state has exercised coercive power over a private actor’s
decision or action. Id. at 775–76. The “public function” test asks
“whether the challenged action is a traditional and exclusive function of
the state” and “is difficult to satisfy.” Id. at 776–77. The “joint action
test” asks whether a private actor acted in concert with state officials to
deprive the plaintiff of constitutional rights. Id. at 777. And the

6 Of course, executive orders, altering national policy, and firing gov-

ernment employees are paradigmatic examples of state actions. This
Court has doubts, though, that the announcement of those state actions
is itself state action, and more to the point, that announcing them via a
particular medium transforms all actions an official takes in connection
with that medium into state action.

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“symbiotic relationship” test asks whether there is “entwinement” be-

tween the state and a private entity. Id. at 777–78.

The facts of this case do not fit neatly into any of these four tests. For
instance, the state has not exercised “coercive power” over Representa-
tive Boebert (nexus test); blocking someone on Twitter is not a tradi-
tional and exclusive function of the state (public-function test); and Rep-
resentative Boebert did not act in concert with state officials (joint-ac-
tion test). Perhaps the “entwinement” test is a better fit, but that doc-
trine appears to have been developed to address action by private enti-
ties engaged in business relationships with the state, such as contrac-
tors for correctional facilities. See id. at 777–80 (collecting cases under
this test applied to entities with government contracts or that accept
state funding).

Under the unrebutted facts before the Court, Ms. Buentello cannot
demonstrate that Representative Boebert’s use of the @laurenboebert

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account constituted state action.7 Ms. Buentello therefore has failed to

meet her burden of establishing a substantial likelihood of success on
the merits of her First Amendment claim.

II. Colorado Constitutional Claim

Ms. Buentello also brings a claim under the Colorado Constitution’s

guarantee of freedom of speech and press. Colo. Const. art. II, § 10. That
provision states, in relevant part, that “no law shall be passed impairing
the freedom of speech; every person shall be free to speak, write or

7 Even if she had established state action, to prevail on her First

Amendment claim Ms. Buentello would also have to establish that @lau-
renboebert is a public forum. There are significant reasons to question
whether that could be so. See Knight II, 141 S. Ct. at 1221–26 (Thomas,
J., concurring). And concluding that elected officials’ social-media ac-
counts are public forums may cause more wide-ranging consequences
than courts have acknowledged. At core, a public forum is, as
Ms. Buentello points out, a place where everyone can engage in unfet-
tered exchange of ideas, subject only to the liberal limits of the First
Amendment. See Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 96
(1972). So if an official’s Twitter account is truly a public forum, then
everyone must be allowed to participate and speak out in that forum.
But in fact, Twitter has the power to suspend or terminate any user’s
account “at any time for any or no reason,” see Knight II, 141 S. Ct.
at 1221–26 (Thomas, J., concurring), and has in fact exercised that
power to block presidents, newspapers, and everyday citizens alike from
speaking on its platform, including these alleged public forums. If public
officials’ accounts are true public forums, those exclusions too must be
subject to First Amendment scrutiny. Government officials can’t operate
a public forum and yet permit its private host to block critics from that
forum. So if a public official’s Twitter feed is a public forum, then officials
could be liable not only for their own blocking, as is alleged here, but
also for choosing to hold a public forum on a platform that itself blocks
or chills speech that, while it may violate the platform’s terms of service,
is protected by the Bill of Rights.

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publish whatever he will on any subject, being responsible for all abuse
of that liberty.”8 Id.

The Colorado Supreme Court has interpreted this provision to pro-

vide protection not only against government action but also “certain ex-
ercises of private power.” See Bock v. Westminster Mall Co., 819 P.2d 55,
59–60 (Colo. 1991). In Bock, the Colorado Supreme Court extended con-
stitutional liability to a shopping mall that partnered with a city gov-
ernment to improve surrounding streets and allowed the city to operate
a police substation within the mall rent-free. Id. at 61–62.

This, however, is not quite as significant a departure from federal

First Amendment doctrine as Ms. Buentello argues—or needs it to be to
prevail. This “exception” to the state-action requirement closely mirrors
the federal courts’ expansion of the state-action doctrine to include pri-
vate entities acting on the government’s behalf or otherwise intertwined
with the government. See Wittner, 720 F.3d at 775–78. But as explained
above, those doctrines appear to have little applicability to social-media-
blocking cases where a single elected official commits the relevant act
on her own initiative. Because Ms. Buentello has cited no other Colorado
caselaw on state action that would alter the Court’s analysis under the
federal Constitution, she is unlikely to succeed on the merits of her
state-law claim.

And if Ms. Buentello were right that operating @laurenboebert is a

government-authorized activity, the Supremacy Clause would also seem
to present a barrier to Ms. Buentello’s state-law claim. A federal officer

8 Ms. Buentello’s claim under the Colorado Constitution raises cause-

of-action and separation-of-powers concerns similar to those raised by
her federal claim. She has not provided any case where a federal court
has enjoined a member of Congress, in her official capacity, for a viola-
tion of state law.

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Case 1:21-cv-00147-DDD Document 31 Filed 06/24/21 USDC Colorado Page 17 of 17

is entitled to Supremacy Clause immunity from state liability if, in per-

forming an act “which he is authorized to do under federal law, the agent
had an objectively reasonable and well-founded basis to believe that his
actions were necessary to fulfill his duties.” Wyoming v. Livingston, 443
F.3d 1211, 1222 (10th Cir. 2006). Ms. Buentello argues that Representa-
tive Boebert has conceded that her blocking of Ms. Buentello was not
necessary to fulfill her duties as a United States Representative. But if
her blocking was not part of her officially authorized duties, then it’s
hard to see how the blocking was state action. And if the claim would
turn on whether this kind of Twitter activity is “necessary,” this Court
is deeply dubious, for the separation-of-powers reasons noted above,
among others, that federal courts are the proper forum for second-guess-
ing members of Congress as to what is a necessary part of their job. Ei-
ther way, Ms. Buentello’s state-law claim would fail.

Since Ms. Buentello has not shown she is likely to succeed on the
merits of either of her claims, the Court need not address the other pre-
liminary-injunction factors. Her request for a preliminary injunction is
denied.

CONCLUSION

Since she is not likely to succeed on the merits of either of her claims,
Ms. Buentello’s Motion for a Preliminary Injunction (Doc. 2) is DENIED.

DATED: June 24, 2021 BY THE COURT:

Hon. Daniel D. Domenico

United States District Judge

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