In July 2017, a group of people blocked by @realDonaldTrump on Twitter sued the President and several of his aides, arguing that the President blocking them violated the First Amendment. Their suit argues that the President’s Twitter account “is a kind of digital town hall in which the president and his aides use the tweet function to communicate news and information to the public, and members of the public use the reply function to respond to the president and his aides and exchange views with one another.” A district court ruled that the account was a public forum and that blocking users who disagreed with the President’s views was constitutionally impermissible viewpoint discrimination. The White House unblocked the users, and promptly filed a notice of appeal in the Second Circuit. The court will hear argument tomorrow, March 26th.

On appeal, the government is making two arguments that are somewhat in tension with one another. In this post, we’ll flesh out those tensions and highlight how the two competing arguments underscore some flaws in the government’s reasoning, and also raise questions about some of the litigation choices that DOJ has made in the course of defending the President’s petty behaviors on social media.

The two DOJ arguments that we’ll focus on are that (1) Trump is blocking users in his personal capacity, so the blocking does not constitute state action subject to the First Amendment; and (2) the account’s statements and actions are not subject to First Amendment scrutiny because they constitute “government speech.”

Let’s start with the first argument on state action. It is black letter law that the Constitution (except for the Thirteenth Amendment) does not apply to private parties. It applies only to state actors. That goes for the First Amendment too-- only government suppression of speech violates the First Amendment. Private suppression of speech does not. But there are some cases where the doctrine treats what are formally private actors as government actors, and thus subject to the First Amendment.

In the @realdonaldtrump litigation, the government is arguing that this case involves only the actions of a private party in his private capacity on a private medium. In the government’s summary judgment motion, it argued that “the President’s use of his personal Twitter account” is “plainly excluded from state action” just like “giving a toast at a wedding” would be. The government noted that the President established the account in 2009, back in the blissful days before he was President; and that the President does not operate the account “by virtue of federal law” “Article II” or “the presidency.” Twitter is also a “private platform, run by a private company” and it--the private company--“structures the interactions of its users on its own terms.”

On their own terms, these arguments are not particularly persuasive. For example, someone might have … bear with us … a personal e-mail account from which they send official government emails or emails about government business (can you imagine, Jared and Ivanka?). It doesn’t follow that all of those e-mails (including e-mails arranging trade deals with foreign countries) aren’t state action just because the e-mail sender had the e-mail account before assuming their official duties. And it certainly isn’t dispositive to the state action question that the actions are happening on a private platform. Government actions on private property can implicate free speech. That’s why tort liability arising from actions online or in private publications or on private property can still implicate the First Amendment. That’s also why government regulation of what private parties can distribute at private malls or in private neighborhoods does too. It’s also … not irrelevant that the President has *White House staff* occasionally operating his Twitter account!

The government’s affirmative argument in its summary judgment brief closes with this odd statement: “[T]he President’s decisions about who to interact with and what information to consume … are not state action.” That can’t be quite right, either. The President couldn’t implement those decisions about who to interact with by (for example) having the secret service arrest people who were sharing information he didn’t want to consume. So there are limits on how the President could implement those choices.

But the shortcomings of the government’s arguments on state action become even more clear when they are juxtaposed against the government’s arguments on government speech doctrine. The government’s argument on government speech is an argument in the alternative: If the President’s decision to block users is state action, it is government speech, not private speech. And when the government is speaking, it can discriminate on the basis of viewpoint (which the government appears to be conceding the President has done here).

The government speech doctrine protects the government’s ability to disseminate information. It distinguishes the government’s capacity to publicize information via government speech from its ability to create public fora in which private speakers speak. While in a public forum the government cannot discriminate based on viewpoint, when the government “speaks” it is not creating a forum and thus can discriminate on the basis of viewpoint. Otherwise, the government could never get out its own message.

Two recent cases are useful to establishing what is government speech and what isn’t--Pleasant Grove v. Summum and Walker v. Texas Division, Sons of Confederate Veterans. In Pleasant Grove v. Summum, a local religious group called Summum (they have their own pyramid!) requested to place a monument of their Seven Aphorisms near to, and in a similar size and shape to, a monument of the Ten Commandments. The town refused and Summum sued the city. The case reached the Supreme Court, which ruled in favor of the town on the ground that a monument is government speech that doesn’t require a neutral viewpoint. Subsequently, in Walker v. Texas Division, Sons of Confederate Veterans, the Court ruled 5-4 that Texas could deny an application for a license plate frame from a group of dubious distinction because the license plate frame amounted to government speech, and thus the government should get to decide when to speak and when not to.

The decisions offer some helpful guideposts about what is and isn’t government speech. An analogy might be helpful too. You can think of a public forum as a park where the government says, “here’s a soapbox, use it!” In that context, it would be impermissible viewpoint discrimination for the government to add a sign next to the soapbox that says “you can’t use this soapbox if you don’t agree with us.” You can think of government speech as an instance where the government posts a sign that says “here’s some public information we think is important to you!” That sign can be placed anywhere, even in private spaces, without creating a public forum.

On Twitter, the President’s tweets are kind of like the billboard that says “here’s some information we want you to know!” But right beneath that billboard is a soapbox on which to respond to the President. And what @realdonaldtrump does by blocking people is to add a sign next to the soapbox under the billboard that says the soapbox is available “except if you disagree with us.” The tweets themselves are not subject to First Amendment scrutiny, but publishing government speech on Twitter does create a public forum in the comments section that the blocked users won’t have access to. And blocking the users from commenting is still state action because the President and his aides are doing it.

Whether the President’s use of Twitter to block people is government speech, however, is less important for this post than the juxtaposition of the government’s two arguments--that the President’s use of Twitter doesn’t amount to state action, but if it does, well then it’s clearly the state who’s speaking.

Litigants make arguments in the alternative all the time. So there’s no reason to think the government would be any different in this respect (though we may want to hold them to a higher standard). But the alternative arguments the government made in the @realdonaldtrump litigation are unique in that they happen to highlight each other’s weaknesses pretty well. In particular, all of the government’s arguments about why the President’s use of Twitter amounts to government speech make clear why operating the Twitter account is a form of state action (the President announces presidential decisions and official actions from the account, and it is operated by White House staff). And the government’s arguments on government speech narrowly and mistakenly focus on only one use of Twitter--tweeting out one’s own Tweets. They do not acknowledge the discussions that happen in replies or retweets. And once the use of the account is state action, then decisions to limit the public fora created by the account’s tweets are subject to the First Amendment.

It is also worth pausing over the involvement of DOJ’s lawyers in this case. We more than understand that the job of government lawyers is to defend the government, including when the lawyers do not agree with the government’s actions or litigating positions.

But there is something uncomfortable about the time, energy, and resources that government lawyers have poured into defending the President’s petty blocking decisions on Twitter, or his financial stake in his private businesses. There are even some parallels between those costs and the government money that has gone into financing the President’s multiple trips to Mar-a-Lago and his private golf courses. We bear these costs because we elected as President a disreputable grifter who is seemingly incapable of doing the right thing or acting in the public interest. Government money and government lawyers were meant for better things.

@kyjskinner

@LeahLitman

All court filings can be found here.

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