IP Law Daily President Trump’s blocking users from Twitter violates First Amendment
Wednesday, July 10, 2019

President Trump’s blocking users from Twitter violates First Amendment

By Brian Craig, J.D.

The Second Circuit ruled that under the First Amendment, President Donald Trump cannot exclude persons from participating in an online dialogue on an official social media account.

Concluding that President Donald Trump’s Twitter account serves an official government purpose and functions as a public forum, the U.S. Court of Appeals in New York City has ruled that the President cannot engage in viewpoint discrimination under the First Amendment by blocking certain users. In affirming a decision of the federal district court in Manhattan, the Second Circuit held that the evidence pointing to the public, non-private nature of the account and its interactive features was overwhelming. The Second Circuit ruled that the First Amendment does not permit "a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees" (Knight First Amendment Institute at Columbia University v. Trump, July 9, 2019, Parker, B.).

The individual plaintiffs, who are social media users, were blocked from accessing and interacting with the Twitter account of President Donald Trump because they expressed views he disliked. Plaintiff Knight First Amendment Institute at Columbia University is an organization that alleged it had a right to hear the speech that the individual plaintiffs would have expressed had they not been blocked. The plaintiffs sued President Trump along with certain White House officials, contending that the blocking violated the First Amendment. The district court granted summary judgment to the plaintiffs, concluding that the President’s official Twitter account was a public forum and that the plaintiffs’ exclusion from that space amounted to unconstitutional viewpoint discrimination. The President and White House officials appealed.

Public nature of account. The Second Circuit first concluded that the President’s Twitter account is an official government account rather than a private, personal account. The President’s primary argument was that when he blocked the individual plaintiffs, he was exercising control over a private, personal account. But the Second Circuit found that the evidence of the official nature of the President’s Twitter account was overwhelming. The account is registered to "Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’" According to the National Archives and Records Administration, the President’s tweets are official records that must be preserved under the Presidential Records Act. The @WhiteHouse account, an undoubtedly official Twitter account run by the government, directs Twitter users to follow Trump’s Twitter account. Since he took office, the President has consistently used the Twitter account as an important tool of governance and executive outreach. For these reasons, the court concluded that the factors pointing to the public, non-private nature of the account and its interactive features were overwhelming.

Public forum and viewpoint discrimination. Next, the Second Circuit examined whether the President engaged in viewpoint discrimination in violation of the First Amendment. Once it was established that the President was a government actor with respect to his use of the Twitter account, viewpoint discrimination violates the First Amendment. When the government provides a forum for speech in a public forum, the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint.

The Twitter account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the account as an official vehicle for governance and made its interactive features accessible to the public without limitation. As such, the court held that this conduct created a public forum. By blocking the individual plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the individual plaintiff from a public forum, something the First Amendment prohibits.

The court also rejected the argument that the individual plaintiffs were not censored because they could engage in various "workarounds" such as creating new accounts. The court found that these "workarounds" burdened speech. Burdens to speech as well as outright bans run afoul of the First Amendment. Thus, President violated the First Amendment when he used the blocking function to exclude the individual plaintiffs because of their disfavored speech.

Government speech. Finally, the court rejected the argument that to the extent the President’s Twitter account was controlled by the government, it was government speech. Under the government speech doctrine, the Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak about governmental endeavors. If President Trump were engaging in government speech when he blocked the individual plaintiffs, he would not have been violating theFirst Amendment.

But the case did not turn on the President’s initial tweets but rather turned on his supervision of theinteractive features of the social media account, the court pointed out. Considering the interactive features, the speech in question was that ofmultiple individuals, not just the President or that of the government. When aTwitter user posts a reply to one of the President’s tweets, the message isidentified as coming from that user, not from the President.The court concluded by recognizing that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less. Therefore, the Second Circuit affirmed the district court’s decision.

This case is No. 18-1691-cv.

Attorneys: Jameel Jaffer for Knight First Amendment Institute at Columbia University. Jennifer Utrecht, U.S. Department of Justice, for Donald J. Trump and Daniel Scavino.

Companies: Knight First Amendment Institute at Columbia University

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