//  7/12/17  //  Quick Reactions

The Knight First Amendment Institute at Columbia University and Jenner & Block filed suit yesterday against the President, the White House Press Secretary, and the White House Director of Social Media.  The suit argues that blocking seven users from the President’s @realDonaldTrump account violates the First Amendment.

Yesterday’s lawsuit follows a letter Knight sent last month, demanding that the President unblock the accounts of two users who had tweeted remarks critical of the President.

My two prior posts on the constitutionality of the exclusion of critics from the President’s Twitter threads can be found here and here.  Here are a few notes about the most recent development:

(1) The complaint, filed in the Southern District of New York, adds six plaintiffs beyond the two blocked users represented in Knight’s letter:

  • A political consultant and writer for outlets like CNN and the Atlantic, who was blocked after she replied to one of the President’s tweets: “To be fair you didn’t win the [White House]: Russia won it for you.”
  • A Professor at the University of Maryland, who was blocked after he replied with a Trump photograph superimposed with the message “Corrupt Incompetent Authoritarian. And then there are the policies. Resist.
  • A surgery resident at Vanderbilt, who was blocked after he replied:  “Covfefe: The same guy who doesn’t proofread his Twitter handles the nuclear button.”
  • A police officer in Texas, who was blocked when he replied to a Presidential tweet about the opening of a coal mine:  “Congrats and now black lung won’t be covered under #TrumpCare.”
  • A comic and writer in New York, who was blocked after he replied to a Trump tweet promoting “EXTREME VETTING of people coming on the U.S. in order to keep our country safe” with: “Trump is right. The government should protect the people. That’s why the courts are protecting us from him.”
  • The Knight Center itself, which alleges that as a Twitter user, it has been denied access to the blocked users’ speech.

As I discussed in my earlier posts, the critical tweets that preceded each user being blocked are manifestly political speech about issues of public concern, which lie at the heart of First Amendment protections.  Notably, the blocked users have well over 100,000 followers among them, and their critical posts received many thousands of likes and retweets.

(2) The complaint names not only the President but also two of his senior aids—Sean Spicer and Dan Scavino—as defendants.  It alleges, consistent with media reports, that the White House communications staff is involved in the President’s tweeting.  Knight contends that both Spicer and Scavino have the ability to block and unblock users from @realDonaldTrump and that either they or the President blocked each plaintiff user.

(3) The lawsuit follows the Supreme Court’s robust affirmation of access to social media, including Twitter, as a right protected under the First Amendment in Packingham v. North Carolina.  As I discussed in my last update, the Supreme Court’s dicta in that case gives even stronger legal footing to the blocked users claims.

If I were advising the President, particularly with so much else going on, from the drumbeat of Russia scandals to legislative struggles over healthcare, this one seems like an easy call:  unblock these folks.

But given the President’s posture as to so much else, it seems more likely that this case will roll on to (re)establish First Amendment principles in the courts.

Disclaimer:  Amanda has consulted with Knight lawyers on these issues.


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Charlie Gerstein

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Take Care