U.S. appeals court says Trump cannot block Twitter followers

According to the 2nd Circuit, the First Amendment doesn’t allow public officials when using social media accounts for official purposes to exclude others in viewpoint discrimination.

President Donald Trump can’t block critics from seeing his tweets. On Tuesday, the Second Circuit Court of Appeals affirmed a decision holding that such blocking amounts to a constitutional violation.

“The salient issues in this case arise from the decision of the President to use a relatively new type of social media platform to conduct official business and to interact with the public,” states the opinion from Circuit Judge Barrington Parker.

“We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms.

We do conclude, however, 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.”

The lawsuit came from the Knight First Amendment Institute at Columbia University after @realdonaldtrump blocked dozens of individuals.

In May 2018, U.S. District Judge Naomi Reice Buchwald issued a first-of-its-kind decision agreeing with plaintiffs that Trump was using Twitter as a public forum to share official information in his capacity as president. The judge highlighted the interactive nature of Twitter and the ability of audiences to engage in conversations around someone’s tweets. To be blocked, meant less ability to see other people’s replies and respond accordingly. Trump would have been better off muting any listeners whose viewpoints he found distasteful, Buchwald added.

On appeal, Trump continued to argue that his Twitter account was a private vehicle for his own speech and others had no right of access. He further contended that, to the extent the Account is government‐controlled, posts on it are government speech to which the First Amendment does not apply.

“We are not persuaded,” responds the 2nd Circuit. “We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that 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.”

Parker adds that the fact that @realdonaldtrump was for Trump’s personal use before he assumed office in 2016 and that the government doesn’t “own” it in the traditional sense is “not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes.”

“Because the President, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him,” continues the opinion. “Here, a public official and his subordinates hold out and use a social media account open to the public as an official account for conducting official business. That account has interactive features open to the public, making public interaction a prominent feature of the account. These factors mean that the account is not private…. Accordingly, the President excluded the Individual Plaintiffs from government‐controlled property when he used the blocking function of the Account to exclude disfavored voices.”

The decision today is careful about going too far. Besides disclaiming any decision on whether social media companies like Twitter or Facebook are bound by the First Amendment when policing their platforms, the federal appeals circuit notes that not every social media account operated by a public official is a government account.

According to Parker, “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. 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. But these are concerns for other cases and other days and are ones we are not required to consider or resolve on this appeal.”