//  7/12/19  //  Commentary

The Second Circuit issued an important opinion this week holding that the First Amendment prevents the President from blocking his critics on Twitter.  The President may not, the court held, “selectively exclude those whose views he disagrees with” from the interactive, communicative medium he is famous for harnessing, weaponizing, and shouting from in ALL CAPS at all hours. 

The decision is a victory for free speech, an important signal to government officials in the social media era, and a refreshing holding that the President is not above constitutional constraint. 

The case presented novel issues primarily stemming from the application of established constitutional principles to new media.  Although the case was resolved on stipulated facts that made its result more certain, the key fact is one we all know: President Trump governs in significant and prominent part through Twitter.

This post will summarize the key take-aways from the Second Circuit’s opinion.  My prior posts on the constitutionality of the President blocking his critics on Twitter can be found here, here, and here.

First, some facts and concessions.  Donald Trump opened his famed Twitter account in 2009, prior to running for President.  Since becoming President, Trump has used the account, as the parties stipulated, “as a channel for communicating and interacting with the public about his administration.” 

We could all say more from common knowledge.  This President has transformed modern politics, and the modern presidency, through his distinctive use of Twitter.  He uses it to set major domestic and foreign policies, announce key personnel changes, communicate with the American public and foreign leaders alike, troll his critics, and congratulate himself on the GREAT job he is doing at all of the above.

At the time of the parties’ stipulation, Trump’s account had over 50 million followers (now nearly 62 million).  His tweets generate thousands of replies, some of which in turn generate hundreds of thousands more, through Twitter’s distinctively real-time, interactive medium.

The President’s principal Twitter handle, @realDonaldTrump, the court noted, “bear[s] all the trappings of an official, staterun account.” It is registered to “45th President of the United States of America, Washington D.C.” And the header photographs show the President “engaged in the performance of his official duties such as signing executive orders, delivering remarks at the White House, and meeting with the Pope, heads of state, and other foreign dignitaries.”

The President and members of his administration have repeatedly described the use of his account as official.  The President and White House Director of Social Media frequently use the account, the parties stipulated, “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.”  

From announcing the nomination of Christopher Wray as FBI director to declaring the administration’s ban on transgender people in the military to informing the public about the President’s discussions with the South Korean president about North Korea’s nuclear program, (and in a recent about-face that was news even to government lawyers, that the government would still seek to add a citizenship question to the 2020 census), the President and his administration use @realDonaldTrump to conduct official business. 

The National Archives, which is responsible for maintaining governmental records, has likewise concluded that the President’s tweets are official records under the Presidential Records Act. 

The government also conceded that the President blocked each of the individual plaintiffs after they posted tweets critical of the President or his policies and that “they were blocked as a result of their criticism” (that is, for viewpoint reasons).  For examples of posts that triggered presidential blocking, see here.

The government conceded, too, that because the plaintiffs were blocked by the President, they are unable to view his tweets, reply directly his tweets, or to use the @realDonaldTrump webpage to view the comment threads associated with the President’s tweets.  That is, they were blocked from participating in the distinctive interactive space that has become so critical to this presidency and this political moment. 

In short, in the face of well-known facts, the government conceded and stipulated to a lot.

Despite these facts, the government contended in its brief that the President was exercising control over a private, personal account when he blocked the plaintiffs.  At oral argument, however, the government shifted position.  Perhaps in light of the facts described above, it admitted that the President’s Twitter account is not “independent of [Trump’s] presidency,” and argued only that the act of blocking was not state action. 

The court rejected both of the government’s contentions.  As to the broader argument that the account is the President’s private property and his posts are private speech, to which the First Amendment does not apply, the court concluded that “[t]emporary control by the government can still be control for First Amendment purposes.” It further held that who owns title to the property is not determinative in light of the Supreme Court’s holding in Promotions, Ltd. v. Conrad, 420 U.S. 546, 54752 (1975), that a privatelyowned theater leased to and operated by a city was a public forum. “The government’s contention that the President’s use of the Account during his presidency is private founders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account.”

The court likewise rejected the government’s narrower contention that the act of blocking the plaintiffs was not state action.  Rejecting this argument (which was based in part on the fact that blocking is a function available to all Twitter users), the court concluded that just because anyone can block on Twitter “does not mean that the President somehow becomes a private person when he does so.”  In light of the overwhelming evidence that Twitter’s interactive communicative space was used by the President and his staff to conduct official business and that they opened the space to the public to do so, the President’s move to block his critics from that medium was not private action.  And because the President acted as an official when he excluded the plaintiffs from government-controlled space, his (conceded) viewpoint discrimination in so doing violates the First Amendment.

The court also rejected the government’s two arguments in the alternative.  First, that the President’s account is not a public forum and that, even if it were, blocking the plaintiffs didn’t prevent them from accessing that forum.  And second, that to the extent the forum is government controlled, it is government speech to which the First Amendment does not apply.

As to the first, after noting that the First Amendment applies to social media and not only physical forums but also ‘metaphysical’ ones, under Packingham v. North Carolina, 137 S. Ct. 1730 (2017), and Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995), the court concluded that a public forum was created when 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.”  And because of the difficulty of any work-around for a blocked plaintiff to continue to engage with the President’s tweets (and everyone else’s responsive tweets), being blocked burdened the plaintiffs’ speech.

As to the second, everyone agrees that the President’s tweets are government speech.  But blocking someone is not government speech; it is the President’s supervision of the interactive features of the account.  It is his control over other people’s ability to interact with his speech and their ability to speak about and to others about his speech.  And that’s not government speech.  That’s excluding someone from a forum.

In short, the President’s Twitter feed is a public forum for First Amendment purposes and the President cannot, consistent with the First Amendment, block his critics from it.

There are a lot of things that could be said, and deep questions raised, about the public forum and state action doctrines, and the increasing pressure being put both from technology as well as changes in how government at all levels increasingly operates (see, e.g., important work by Jon Michaels and Martha Minow). 

Whatever we might say about those questions, however, this case seems a relatively easy one.  For that reason, I wouldn’t bet on the President’s prospects before the Supreme Court—particularly this speech-friendly Court. 

Disclaimer:  Amanda joined an amicus brief of First Amendment scholars in support of the plaintiffs and consulted with Knight lawyers on these issues.

 


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