By Pedro Wolfe
On July 9th, 2019, the U.S Second Circuit Court of Appeals upheld the judgement of the District Court for the Southern District of New York in ruling that the president cannot block people from his @realDonaldTrump Twitter account. The ruling followed a 2017 lawsuit by the Knight First Amendment Institute against the president, where they alleged that the First Amendment was violated when several plaintiffs were blocked from viewing or responding to @realDonaldTrump’s tweets.
In July of 2017, seven plaintiffs along with the Knight Institute sued President Donald Trump, White House Director of Social Media Daniel Scavino, and two other White House Staff members for blocking their access to what they believed to be a “public forum”. (Read about the ruling in that case.)
The Individual Plaintiffs contended that by being blocked from @realDonaldTrump for criticizing the President’s policies, the government was engaging in “unconstitutional viewpoint discrimination”. The government conceded that each of them was blocked after posting replies in which they criticized the President or his policies, but argued that the account did not constitute a public forum. Upon reviewing the case, the Court of Appeals found that “the account was intentionally opened for public discussion when the President, upon assuming office …. made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum” (Opinion, 23).
The three circuit judges also addressed whether Donald Trump’s Twitter account could be considered public or private. @realDonaldTrump is distinguished from @POTUS, the official Twitter account of the President’s office, because it was created by Donald Trump in 2009 as a private citizen. As such, Trump’s lawyers argued that he was exercising control over a private, personal account, so blocking the plaintiffs violated no First Amendment rights as a public official.
The court acknowledged that @realDonaldTrump was initially created as a private account, but pointed to various statements by the Trump Administration that demonstrate it is currently an official arm of the presidency. Most notably, Former White House Press Secretary Sean Spicer stated in a press conference that the tweets should be considered “official statements by the President of the United States”. Considering this, the Appeals Court ruled in the plaintiffs’ favor, stating 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-dialogue because they expressed views with which the official disagrees” (Opinion, 4).
The Court of Appeals concluded that “The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide-open, robust debate … In resolving this appeal, we remind the litigants and the public 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” (Opinion, 29).