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Tuesday, July 9, 2019

2nd Circuit Agrees That Trump Cannot Constitutionally Block Critics on Twitter

By Jacob Sullum - July 09, 2019 at 02:03PM

Today a federal appeals court panel unanimously ruled that Donald Trump's habit of blocking critics on Twitter violates the First Amendment. The U.S. Court of Appeals for the 2nd Circuit agreed with U.S. District Judge Naomi Reice Buchwald, who last year ruled that Trump had created a public forum by using his Twitter account for official purposes and opening the "interactive space" associated with it to the general public, making it unconstitutional for him to exclude people whose opinions annoy him.

"The public presentation of the Account and the webpage associated with it
bear all the trappings of an official, state‐run account," the appeals court says. It notes that the account identifies Trump as the "45th President of the United States of America" in "Washington, D.C." and features photographs of Trump "engaged in the performance of his official duties such as signing executive orders, delivering remarks at the White House, and meeting with the Pope, heads of state, and other foreign dignitaries."

Trump routinely uses his Twitter account to announce his decisions, defend his policies, promote his legislative agenda, communicate with foreign leaders, and complain about press coverage he views as unfair to his administration. The president has used his account to announce important developments such as his nomination of a new FBI director, his replacement of his chief of staff, and his ban on transgender people in the military. Trump "also used the Account to inform the public about his discussions with the South Korean president concerning North Korea's nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea." The White House has said Trump's tweets are "official statements by the President of the United States," and the National Archives deems them official presidential records.

As for the "interactive space," Trump's account has 62 million followers, and his tweets produce "an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies." By making it difficult for the critics he blocks to participate in that public debate with their own likes, retweets, and replies, the 2nd Circuit says, Trump engaged in impermissible viewpoint discrimination.

While Trump unblocked the plaintiffs and other critics in response to Buchwald's ruling, he also appealed her decision, arguing that the account is private, that it is not controlled by the government, that the discussion it invites does not qualify as a public forum, and that the burdens imposed by blocking certain users are not constitutionally significant. The appeals court rejected all of those arguments.

"Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with," the court says. "Once it is established that the President is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment….While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees….We hold that the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech."

The 2nd Circuit notes that its decision does not mean any government official with a Twitter account has to let all users follow him, regardless of how irksome they are. "Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry," it says. "The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account." Here are some tips for politicians with social media accounts who don't want to face First Amendment lawsuits.

Nor does this decision imply that social media companies have to worry about violating the Constitution when they decide how to regulate speech on their platforms. They are private actors to whom the First Amendment does not apply.

As the court notes, "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes." Twitter's role in this case is analogous to that of a landlord who rents an auditorium for government use. If the government held public meetings in that auditorium, it would be unconstitutional to exclude people from the meetings based on their views. That does not mean the landlord himself, or any private parties who might rent his space, are constrained by the First Amendment.

The lawsuit that led to this decision, which was filed by Columbia University's Knight First Amendment Institute and seven blocked Twitter users, prompted a considerable amount of dismay and criticism. But the 2nd Circuit's ruling seems like a pretty straightforward application of First Amendment principles that constrain the government's actions when it uses a physical space for official purposes and invites public participation. The decision leaves social media platforms free to regulate content and leaves social media users (including government officials, as long as they are acting in their private capacity) free to exclude anyone they don't like from their Twitter accounts or Facebook pages. It simply means that public officials like Trump, in light of the First Amendment, have special obligations when they use social media for official purposes.


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