Second Circuit concludes Trump blocking Twitter ­dissenters violates First Amendment

President Donald J. Trump appeals from a judgment of the United States District Court for the Southern District of New York, concluding that he engaged in unconstitutional viewpoint discrimination by using Twitters "blocking" function to limit certain user's access to his social media account which is otherwise open to the public at large, because he disagrees with their speech.

The Second Circuit Court of Appeals affirms the judgment below and concludes that the First Amendment does not permit a public official who uses 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 case is Knight First Amendment Institute v. Donald J. Trump, issued on July 9, 2019 (No.18-1691-cv). Trump conceded in this litigation that he blocked some Twitter followers because he did not like what they had to say. His lawyers argued that the Twitter account was not a public forum but, instead, a private outlet which Trump started before he wandered into the White House.

The Court of Appeals disagrees, as his current Twitter account is largely devoted to discussing public policy and prominently states that Trump is the 45th President of the United States. Judge Parker writes, the current Twitter account is a "channel for communications and interacting with the public about his administration." Further, he states, "The public presentation of the Account and the webpage associated with it bear all the trappings of an official, state-run account." Even the National Archives regards Trump's tweets as official government records.

The Second Circuit finds the Twitter account is in fact a public forum, which places strong restrictions on how the government may restrict speech in connection with that forum. As the Court says, "Opening an instrumentality of communication for indiscriminate use by the general public creates a public forum. The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold this conduct created a public forum."

Additionally, the Court of Appeals rejects Trump's arguments that his Twitter account is really government speech which does not require dissenting responses. The Court writes:

"Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President's tweets, the message is identified as coming from that user, not from the President. There is no record evidence and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President's tweets can accurately be describedas government speech, the retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President's tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation. The Supreme Court has described the government speech doctrine as "susceptible to dangerous misuse." It has urged "great caution" to prevent the government from "silencing or muffling the expression of disfavored viewpoints" under the guise of the government speech doctrine. Extension of the doctrine in the way urged by President Trump would produce precisely this result."

The Court gently makes the point, "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."

Since we are not seeing press conferences anymore, this decision is significant because it defines Twitter as a conversation highway that allows for all discourse, unless otherwise limited from the opening of such account. More clarification will surely follow!

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Lindy Korn practices at The Law Office of Lindy Korn and can be reached at lkorn@lkorn-law.com, (716) 856-KORN (5676) or www.lindykorn.com.

Published: Thu, Jul 25, 2019