Outside the Beltway

Appeals Court Upholds Ruling That Trump Can’t Block People On Twitter

The 2nd Circuit Court of Appeals has upheld a District Court ruling that President Trump cannot block Twitter users from accessing his account.

Doug Mataconis · Wednesday, July 10, 2019 · 20 comments

A Federal Appeals Court has upheld a lower court ruling that held that the First Amendment forbids President Trump from blocking users on Twitter:

President Trump has been violating the Constitution by blocking people from following his Twitter account because they criticized or mocked him, a federal appeals court ruled on Tuesday. The ruling could have broader implications for how the First Amendment applies to the social-media era.

Because Mr. Trump uses Twitter to conduct government business, he cannot exclude some Americans from reading his posts — and engaging in conversations in the replies to them — because he does not like their views, a three-judge panel on the United States Court of Appeals for the Second Circuit ruled unanimously.

Writing for the panel, Judge Barrington D. Parker noted that the conduct of the government and its officials are subject today to a “wide-open, robust debate” that “generates a level of passion and intensity the likes of which have rarely been seen.”

The First Amendment prohibits an official who uses a social media account for government purposes from excluding people from an “otherwise open online dialogue” because they say things the official disagrees with, he wrote.

“This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing,” Judge Parker wrote. “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.”

(…)

Mr. Trump’s Twitter account, @realDonaldTrump, has nearly 62 million followers, and he often uses it to make policy pronouncements and communicate with the public, driving the news of the day. Last week, for example, Mr. Trump used Twitter to abruptly announce that the government would still seek to add a question to the 2020 census about people’s citizenship, reversing what administration officials had previously told a court.

His posts routinely generate tens of thousands of replies, as people respond to what he has said and engage in debates with each other.

Against that backdrop, a group of Twitter users whom Mr. Trump had blocked from accessing his postings, asked the White House to be unblocked and then, when their request went unheeded, sued him.

The plaintiffs included Rebecca Buckwalter, a fellow at the liberal Center for American Progress. Her account was blocked after she responded to a tweet by Mr. Trump on June 6, 2017, in which he accused various mainstream news media outlets of being “fake news” media and said he would not have won the White House if he relied on them.

Ms. Buckwalter replied, “To be fair you didn’t win the WH: Russia won it for you” — and she was blocked by Mr. Trump’s account.

The lawsuit argued that Mr. Trump’s account amounted to a public forum — a “digital town hall” — so his decision to selectively block people from participating in that forum because he did not like what they said amounted to unconstitutional discrimination based on their viewpoints.

Mr. Trump’s legal team argued, among other things, that he operated the account merely in a personal capacity, and so had the right to block whomever he wanted for any reason — including because users annoyed him by criticizing or mocking him.

But the appeals court disagreed, saying he was clearly acting in a government capacity in his use of Twitter.

“We are not persuaded,” Judge Parker wrote. “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.”

Eugene Volokh, who has been supportive of the Plaintiff’s position in this case in the past, comments:

Trump, assisted by White House Social Media Director Daniel Scavino, 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.

“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.”

Volokh expands on this argument in a subsequent post:

President Trump is a government official, and his actions are potentially constrained by the First Amendment.

One can argue that he’s running the account in his individual capacity; but once the court concludes that he’s acting as an official, and not just as a politician, the First Amendment does apply to him. And if the blocking were done on a government entity’s account, such as an account run by a school board, a police department, or a city council, then the First Amendment would even more clearly apply.

Nor should it matter that President Trump is using private property for his speech. A city council, for instance, is barred by the First Amendment from kicking speakers out of an open comment period based on their viewpoints. (It has no constitutional obligation to set up such a period, but many city councils choose to.) And that remains so even if the city council decides to meet in a privately owned building that the owner has let it use for the occasion.

Likewise, a public university can’t have a policy saying, “we’ll issue all students university e-mail accounts, but we’ll delete the account of any student who uses the account to say something offensive based on race, religion, sex, or sexual orientation.” And that’s true even if the university-issued e-mail accounts are hosted on Microsoft or Google computers.

Whether the First Amendment applies to a speech restriction generally depends on who is imposing the restriction. If the government is imposing the restriction, then the First Amendment does apply, whether or not the speech is on private property. Likewise, if a private entity is imposing the restriction, then the First Amendment doesn’t apply, whether or not the speech is on government property.

In my past posts about this case — see here, here, here, and here — I have been skeptical of the argument that the Plaintiffs advanced that the President blocking them from accessing his @RealDonaldTrump account was a violation of their First Amendment rights. For example, as I have said in the past Twitter is a private company and the First Amendment does not apply to it. Additionally, Trump’s account is not, technically speaking, his “official” Twitter account; that would be the @POTUS account that has been in existence since before Trump became President and which was used as the “official” account for the President since it was first established under the Obama Administration. In that regard, it’s worth noting that the @POTUS account appears to repost nearly everything that is posted on the @RealDonaldTrump account. Third, there are means by which someone who has been blocked by Trump on the account in question can still see what he wrote, including the  @RealPressSecBot account 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. Another option would be to use your browser’s “Incognito” mode, or whatever the equivalent is on the browser of your choice to access the home page of Trump’s account, at which point they can see everything that has been tweeted by his account. One counterargument to all of these points, of course, is that none of them deals with the most fundamental things that blocking someone on Twitter does which is prevent the person who is blocked from replying to Tweets from the person who blocked them. To the extent that this can be seen as a form of petitioning the government for a redress of grievances, a right protected by the First Amendment then one could argue that blocking does implicate a First Amendment right when done by a public official using an official account.

The Court of Appeals, and the District Court before it, gets around these arguments principally by noting that Trump uses his Twitter account as more than just a personal account but also as a means of announcing Administration policy, announcing the nomination of Cabinet and other officials, and attacking people who criticize him. What he says on this account often end up becoming major news stories or political controversies. Moreover, as noted above, the White House has called the @RealDonaldTrump account a vehicle for communicating official White House policy. Therefore, the two courts concluded, the President could not block Twitter users from accessing his account and communicating with him via that account, even if it is just a one-sided conversation since Trump rarely replies to Twitter users.

As the Court of Appeals notes, this doesn’t mean that a government official could never block someone on a personal account. Presumably, if that account were being used for exclusively private matters as opposed to communicating government policy and other matters as Trump does then the analysis would be different. That, however, is not the case here. It’s also worth noting that throughout this case the President has been represented by attorneys from the Department of Justice, not by White House Counsel or by his private attorneys. If the Twitter account was truly a private forum for Donald Trump rather than a tool for communicating Administration policy then it would be utterly inappropriate for government attorneys to be involved at all. Neither the District Court nor the Court of Appeals opinions makes note of that fact (although it may be stated in a footnote somewhere that I missed) but this cannot have escaped the attention of the District Court Judges or the Court of Appeals Judges. For these reasons, and after reading through the 2nd Circuit opinion I must admit that my initial assessment of this case was incorrect, that the Plaintiff’s First Amendment claims have far more merit than I initially gave them credit for, and that the District Court and the 2nd Circuit Court of Appeals got this case right based on the facts of the case that was before them.

In any case, the next steps in this case are clear. The President’s attorneys have not stated whether they intend to appeal this decision but one can assume that they will. Absent the possibility that they would seek en banc review of this decision by the full 2nd Circuit, that means going to the Supreme Court, where the Justices can decide to accept the appeal or let the ruling stand.

Update: President Trump isn’t the only on facing an issue with blocking people on Twitter:

President Trump and Representative Alexandria Ocasio-Cortez are diametrical opposites in nearly every way, except perhaps for their shared home state of New York and their social media dominance.

But now there may be another thing that binds the two: a federal appeals panel ruling on Tuesday that Mr. Trump, a Republican, has been violating the Constitution by blocking people from following him on Twitter because they criticized or mocked him.

That ruling is now the basis of two lawsuits filed against Ms. Ocasio-Cortez, a Democrat, accusing her of blocking people because of their opposing political stances.

Ms. Ocasio-Cortez has 4.7 million followers on her personal Twitter account, @AOC, which she uses to frequently discuss policy and advocate her proposals, such as the Green New Deal and her belief that the camps holding children and other undocumented immigrants seeking asylum at the Texas border are “concentration camps.”

Dov Hikind, a former assemblyman from Brooklyn who is the founder of Americans Against Anti-Semitism, said he regularly replies to Ms. Ocasio-Cortez’s tweets, but was blocked on July 8.

Joseph Saladino, a YouTube personality known as “Joey Salads” who is running for a congressional seat representing Brooklyn and Staten Island, said he was blocked on May 9.

But because Ms. Ocasio-Cortez uses the account to discuss policies that affect them, she cannot use the account to “suppress contrary views” and violate his First Amendment rights to free speech, Mr. Hikind said in his lawsuit, filed in Federal District Court in Brooklyn.

“It’s very clear based on the court’s ruling that A.O.C. is violating my constitutional rights to free speech by excluding me,” Mr. Hikind said in an interview. “She doesn’t want me to be a part of the discussion and conversation.”

Mr. Hikind said he was blocked after criticizing Ms. Ocasio-Cortez for her concentration camp comments.

“She has a right to have that position. That’s not the issue. The question is why is she afraid of other people’s positions?” he added.

Mr. Saladino, whose pranks have been criticized as racist, filed a separate lawsuit in Federal District Court in Manhattan. He said that as a practical matter, he does not care if Ms. Ocasio-Cortez blocked him because he can still access her Twitter comments from an anonymous account.

He said his complaint is a test of whether there is a double standard in the courts for liberals and conservatives.

Ms. Ocasio-Cortez’s @AOC account is not her official congressional account. Her official congressional account, @RepAOC, has 172,000 followers and was last updated July 5, as of Wednesday afternoon.
Jacob Weinstein, Mr. Hikind’s lawyer, noted that the court ruling concerned the @realDonaldTrump personal account, followed by 61.8 million users, that Mr. Trump uses most often to comment on Twitter, not his official presidential Twitter account.

“It comes down to the First Amendment,” Mr. Weinstein said. “Twitter is a public forum. Imagine a politician is giving a town hall. Imagine if they only select people they like.”

Ocasio-Cortez appears to be in the same position as Trump in that she is using an ostensibly personal account as a political tool. Therefore, its seems clear that her blocks are impermissible. She should immediately unblock anyone she’s blocked rather than fighting these lawsuits.

Here’s the 2nd Circuit Opinion:

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