Trump Violates First Amendment by Blocking Critics on Twitter (2)

July 9, 2019, 3:01 PM; Updated: July 9, 2019, 5:21 PM

President Donald Trump violated the First Amendment by blocking critics from his Twitter account, a federal appeals court ruled July 9.

The president created a public forum by using Twitter to conduct official business, and therefore can’t discriminate on the basis of viewpoint, the opinion by Judge Barrington D. Parker of the U.S. Court of Appeals for the Second Circuit said.

Trump therefore can’t prevent critics from using the interactive space on his account to respond to his Tweets, the court said.

“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, said after the ruling.

“This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism,” said Jaffer, who argued the case before the New York-based Second Circuit in March on behalf of several Twitter users blocked after criticizing Trump and his policies.

“The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”

The ruling is a “welcome and timely reminder, right after Independence Day, that the government works for the people—all of the people—whether or not they like the President,” said Charles D. Tobin, co-practice leader of Ballard Spahr’s Media and Entertainment Law Group.

The Justice Department is “disappointed with the court’s decision” and is “exploring possible next steps,” said spokesperson Kelly Laco. “As we argued, President Trump’s decision to block users from his personal twitter account does not violate the First Amendment.”

Trump argued that his Twitter account, @realDonaldTrump, isn’t a public forum. But the court said it was intentionally opened for the president’s public discussion, he repeatedly uses it as an official vehicle for governance, and generally makes the interactive feature accessible to the public without limitation.

Trump also argued that his account with more than 61 million followers is actually government speech and the First Amendment doesn’t require the government to maintain viewpoint neutrality.

It may be government speech when Trump posts an initial Tweet, but the interactive features aren’t government speech, it said.

“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,” the court said.

“This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing.”

Judges Peter W. Hall and Christopher F. Droney joined the opinion.

The case is Knight First Amendment Inst. at Columbia Univ. v. Trump, 2d Cir., No. 18-1691-cv, 7/9/19.

(Adds comment from Tobin at paragraph six, Laco at paragraph seven, and updates with other details about case, Trump Twitter profile. )

To contact the reporter on this story: Bernie Pazanowski in Washington at bpazanowski@bloomberglaw.com;Jordan Rubin in Washington at jrubin@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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