On Tuesday, July 9, 2019, the United States Court of Appeals for the Second Circuit held that President Donald J. Trump engaged in unconstitutional viewpoint discrimination, in violation of the First Amendment, by blocking certain users’ access to his Twitter account based on those users’ speech on Twitter. The Knight First Amendment Institute at Columbia University sued the President on behalf of seven Twitter users who were blocked from the President’s Twitter account after said users tweeted replies to the President critical of his personality and policies. Judge Barrington D. Parker concluded “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 President’s main argument alleged that by blocking the individual plaintiffs, the President was “exercising control over a private, personal account.” However, the appeals court found the argument unconvincing in light of the overwhelming evidence of the official nature of the President’s Twitter account. The President continued on to argue that his use of the Twitter account during his presidency is purely private. The court found this argument unconvincing as well in light of the “substantial and pervasive government involvement with, and control over, the [Twitter account].”
Once the court determined that the President is a government actor regarding his use of the Twitter account, the analysis shifted to whether the act of blocking the individual plaintiffs consisted of viewpoint discrimination. The government made two arguments: First, the President’s Twitter account is not a public forum and, even if it were a public forum, the plaintiffs were not excluded from the forum. And, second, the Twitter account is government speech not subject to the First Amendment. The appeals court did not find either argument persuasive.
Judge Parker concluded the opinion by writing: “This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. 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.”
Additional Reading
Federal appeals court rules Trump can’t block people on Twitter, USA Today (July 9, 2019)
Knight First Amendment Institute at Columbia University v. Trump, No. 18-1691 (2d Cir. 2019)