Outside the Beltway

Federal Judge: Trump Cannot Block People On Twitter For Political Reasons

A Federal Judge in New York has ruled that President Trump cannot block users from reading his tweets.

Doug Mataconis · Thursday, May 24, 2018 · 4 comments

A Federal Judge in New York City has ruled that President Trump cannot block people on Twitter for political reasons:

[O]n Wednesday, one of Mr. Trump’s Twitter habits — his practice of blocking critics on the service, preventing them from engaging with his account — was declared unconstitutional by a federal judge in Manhattan.

In her ruling, Federal District Court Judge Naomi Reice Buchwald wrote of seven plaintiffs who sued Mr. Trump and several of his aides after being blocked by Mr. Trump’s Twitter account that “the speech in which they seek to engage is protected by the First Amendment.” Judge Buchwald added that Mr. Trump and Dan Scavino, the White House social media director, “exert governmental control over certain aspects of the @realDonaldTrump account.”

The plaintiffs, who were joined in the suit by the Knight First Amendment Institute at Columbia University, had argued that Mr. Trump’s Twitter feed was an official government account and that blocking users from following it was a violation of their First Amendment rights.

In her ruling, Judge Buchwald, who was appointed to the federal bench in 1999 by President Bill Clinton, agreed.

“The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the president’s personal First Amendment interests,” she wrote.

More from The Washington Post:

President Trump’s decision to block his Twitter followers for their political views is a violation of the First Amendment, a federal judge ruled Wednesday, saying that Trump’s effort to silence his critics is not permissible under the U.S. Constitution because the digital space in which he engages with constituents is a public forum.

The ruling rejects administration arguments that the First Amendment does not apply to Trump in this case because he was acting as a private individual. In a 75-page decision, Judge Naomi Buchwald said Trump, as a federal official, is not exempt from constitutional obligations to refrain from ”viewpoint discrimination.”

“No government official — including the President — is above the law,” wrote Buchwald for the U.S. District Court for the Southern District of New York.

Under the ruling, Buchwald did not order Trump to unblock his followers, saying that a finding that clarifies the law is sufficient to resolve the dispute. Should Trump ignore the ruling, analysts say, future litigation could force Twitter to unblock Trump’s followers unilaterally.

The decision marks a victory for free-speech activists representing seven Twitter users who alleged that their rights had been infringed after they tweeted at Trump critiquing his policies. Trump blocked them on Twitter, preventing them from seeing his tweets or interacting with them.

“We are extremely pleased that the judge held that the president’s blocking of critics from the @realDonaldTrump Twitter account violates the First Amendment,” Katie Fallow, a senior staff attorney with the Knight First Amendment Institute who argued the case, said.

While the ruling narrowly targets the Trump administration and is not binding on other public officials, it establishes an important legal precedent that they will be likely to follow. Importantly, the ruling identifies only parts of Trump’s account as a public forum subject to First Amendment protections, not the entire account nor the rest of Twitter.

“The decision may have implications for other government officials’ blocking of critics on social media,” said Joshua Geltzer, an expert in constitutional law at Georgetown University, “but it doesn’t even come close to making all of Twitter a public forum, as the vast majority of the Twittersphere is not being converted into a public forum by government actors.”

The government does not dispute that Trump blocked the Twitter users for political reasons. But the Justice Department had argued Trump was largely acting in a personal capacity, much like “giving a toast at a wedding or giving a speech at a fundraiser.”

But through his Twitter bio and the way in which he frequently uses the medium to comment on public policy, Trump portrays his account as presidential “and, more importantly, uses the account to take actions that can be taken only by the President as President,” Buchwald wrote.

What’s more, Buchwald said, the space below Trump’s tweets that show the public’s replies are a public forum, because it is “generally accessible to the public” and anyone with a Twitter account is able to view those responses, assuming that the user has not been blocked.

While presidents retain their own First Amendment rights even when they take public office, the judge said, Trump “cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.”

Noah Feldman, a Harvard law professor, said he thinks the case was wrongly decided and expects it to be reversed. For a public forum to exist, the government has to own or control it, he said, but in this case, Twitter also controls Trump’s account.

Twitter has long been dogged by questions about how far its users’ right to speech may extend. In the past, its own executives have described the company as being “the free speech wing of the free speech party,” holding that Twitter takes no position on the messages posted by its users.

From the start, it’s worth pointing out what Judge Buchwald did not say given the fact that much of the initial reporting on this case seems to have incorrectly related the basis for her decision. First of all, Judge Buchwald did not say that Twitter as a whole is a “public forum” of any kind to which the First Amendment would apply. Such a ruling, in fact, would be contrary to existing precedent and to the language of the First Amendment itself, which makes it clear that the right protected by the Amendment only applies to restrictions on speech by government entities. Instead, what Buchwald decided here is that Trump’s Twitter feed is, at least in part, a public forum on its own precisely because he is a government official. What this means is that, contrary to some fears or hopes that were raised when the decision was released yesterday afternoon, this opinion would not be a basis upon which someone who has been barred by Twitter for violating its terms of service would have a credible basis to sue the service. This distinction between Twitter accounts owned by members of the general public and those operated by government officials makes sense, I suppose, and it at least keeps the ruling within the lines of traditional and existing First Amendment precedent.

Even with that being the case, though, the proposition that blocking someone on Twitter is somehow a violation of the First Amendment when the person who has executed the block is a government official seems to be a rather weak one to me.

As I stated above, while Trump himself is President of the United States, Twitter is a private entity, not a government-operated forum. As a Twitter user, Trump should have as much right to make use of the methods to service provides to prevent trolls and other persons from showing up in one’s timeline as are available to other users. Blocking someone, or muting them (which prevents a user from showing up in one’s mention column but doesn’t prevent them from seeing the tweets of the person who muted them), does nothing to prevent a user from stating their opinions on Twitter, nor does it prevent others from reading their tweets. Furthermore, there are numerous ways for a user to get around being blocked by an individual user to see what they are tweeting. One method would be to create a separate account on the service, which can be done for free rather easily. With respect to the President himself, another method is to follow an account such as @RealPressSecBot which restyles all of the tweets from Trump’s tweets in the form of White House Press Releases, a nod to the comment that former White House Press Secretary Sean Spicer made last year that the President’s tweets constitute a statement of official White House policy. Arguing that Trump has violated someone’s First Amendment rights by blocking or muting them on Twitter is, it seems to me, akin to arguing that he is obligated to accept the friend request of every American citizen on Facebook or make his private cell phone number available to the general public. Such an argument, of course, would not get very far in a court of law largely because the First Amendment doesn’t mean that someone has a right to be heard by a specific person, but rather that they have a right to speak freely without fear of punishing. Blocking or muting a Twitter account does nothing to infringe on that right.

On the other hand, it’s worth noting that there are methods short of blocking that a Twitter user can utilize to prevent a person from appearing in their timeline. For those of you unfamiliar with how Twitter works, one user can communicate with another by simply replying to one of their messages, or by sending a message that includes their Twitter handle. Such messages would appear as “mentions” on whatever device or means the user is using to access Twitter. There are, however, ways to prevent people from being able to communicate you as a Twitter user. One method is to “mute” a user, which prevents their messages to you from showing up in your “Mentions.” This function, however, doesn’t prevent them from following you or otherwise being able to read your tweets. The other method is to “block” a user, which both prevents their messages to you from appearing in your timeline and prevents them from seeing anything you tweet. There is no way for someone to know if they’ve been muted by a user, but if they have been blocked this can be easily discerned by going to a user’s homepage, where they would see a message saying that they’d been blocked from viewing that users activity. In this respect, it’s worth noting that Judge Buchanan referenced the ability to mute users in the hearing that was held in this matter back in June, although she didn’t reference it in her opinion. Presumably, though, muting a user would be acceptable even if it were a government official like Trump since it doesn’t prevent a user from reading that person’s tweets.

As I noted in my previous posts, there are several legal analysts who I will admit are far smarter than I who have expressed different opinions on the potential claims that the Plaintiffs are making in this case than I have in the past. This includes people on the right such as Eugene Volokh, who examined the legal issues raised by the Knight Foundation’s letter in a detailed post last month and expressed the opinion that there might be an argument under the First Amendment if a Court were to find that Trump was acting in his Presidential role in blocking the accounts rather than as a private individual. Lawfare’s Robert Loeb, meanwhile, posted his own analysis around the same time and came to the conclusion that there is a clear First Amendment violation in the President’s action. On the other hand, Harvard Law Professor Noah Feldman largely dismissed the claims in an article for Bloomberg News.

Late yesterday, Eugene Volokh summarized Judge Buchanan’s opinion and commented as follows:

I think there’s a plausible case that the comment space should be labeled a “limited public forum” rather than a “designated public forum,” but that is not relevant here—the key distinction between the two kinds of fora is that restrictions on speech in designated public fora must be content-neutral and in limited publica fora need only be viewpoint-neutral, but here the plaintiffs are alleging viewpoint discrimination, which is equally barred in limited and designated public fora.

The harder question relates to conclusion 2. As I’ve argued before, even when the President is giving a public speech, he is understood at least in part as expressing his own views. One way we see it is when the President is running for reelection; I think we would recognize his stump speeches as him speaking as a person, not speaking as a government official. Likewise, consider a related issue under another First Amendment provision, the Establishment Clause—even Supreme Court justices who believe that the government may not endorse religion think that it’s fine for government officials to express religious views in their speeches. Here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

And this is true even when the speeches discuss the officeholder’s political actions, and even announce new programs or appointment decisions.

This having been said, I think the court’s position is plausible, especially given that White House Social Media Director and Assistant to the President Daniel Scavino seems to be closely involved with the Twitter feed—this doesn’t distinguish the religion-in-a-public-address scenario, but probably does distinguish the reelection stump speech scenario, where the elected official is generally not allowed to use government staff. I suspect that, if the case is appealed, the Second Circuit will agree with the district court’s decision here, though it’s hard to know for sure.

While I’m considerably more skeptical of the Plaintiffs argument, and Judge Buchanan’s ruling than Volokh is, I tend to agree that her opinion is at least plausible, but I’m not sure that it is going to withstand appeal. Taken to its logical extreme, Buchanan’s ruling would suggest that not only can’t Trump block users from reading his Tweets, he cannot utilize the “mute” function to prevent their tweets from appearing in his timeline. This seems to be especially true given the fact that the Plaintiffs’ argument is based as much in the First Amendment’s guarantee of a right to ‘petition the government’ as it is in the freedom of speech aspect of the Amendment. If Trump mutes a user from his timeline, then he is effectively preventing them from addressing him via Twitter even though he is not preventing them from reading and sharing his tweets with others. This would seem to me to be a step too far even taking into account that we’re talking about a Twitter account run by Donald Trump the President as opposed to Donald Trump the private citizen, assuming there even is such a thing while Trump is in White House House.

From here, the case would go next to the Second Circuit Court of Appeals, and from there, of course, to the Supreme Court. Notwithstanding that the Roberts Court has been particularly strong in protecting First Amendment rights, my guess is that the Plaintiff would find it harder to succeed on appeal than it has been for them in the District Court. In any case, we’ll see how this case proceeds going forward.

Here’s the opinion:

Knight First Amendment Institute Et Al v. Trump Et Al by Doug Mataconis on Scribd