Free Speech

Blocking of Twitter Users from @RealDonaldTrump Violates First Amendment

So holds a federal district court today, in Knight First Amendment Institute v. Trump.

|The Volokh Conspiracy |

President Trump has been blocking some Twitter users from his @RealDonaldTrump account, apparently because of their viewpoints. (The President apparently stipulated, in this lawsuit, that "[s]hortly after the Individual Plaintiffs posted the tweets … in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs," and the President "[does] not contest Plaintiffs' allegation that the Individual Plaintiffs were blocked from the President's Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.") This is unconstitutional, a district court ruled today, reasoning:

[1.] The virtual space provided by Twitter for replying to the President's Tweets is a "designated public forum"—a space controlled (even if not owned) by the government that is generally open for public speech to fellow members of the public, and in which the First Amendment forbids viewpoint discrimination. The Tweets themselves aren't a forum, because they are the President's own speech; but the space for public replies is a forum. The court's concern is that replies are a valuable means for the repliers to speak to fellow members of the public. The court recognizes that there's no right to speak to the President in a way that the President is obliged to read; the President remains free, for instance, to use Twitter's "mute" function, which would keep him from seeing the user's replies when he reviews his own feed.

[2.] The President controls this space in his capacity as a government official, and not just as a private citizen.

The record establishes (1) that the @realDonaldTrump account is presented as being "registered to Donald J. Trump, '45th President of the United States of America, Washington, D.C.'"; (2) "that the President's tweets from @realDonaldTrump … are official records that must be preserved under the Presidential Records Act"; and (3) that the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy—all of which are squarely executive functions.

That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President.

And though the @RealDonaldTrump account was created long before the election, "the President and [his assistant Daniel] Scavino's present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump."

[3.] Though blocked users remain free to read the President's Tweets, and can even comment on them through various workarounds (such as by creating new accounts), the various workarounds "require [the individual plaintiffs] to take more steps than non-blocked, signed-in users to view the President's tweets," which "delay[s] their ability to respond to @realDonaldTrump tweets." This is not a vast burden, the court concluded, but "the First Amendment recognizes, and protects against, even de minimis harms."

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My quick thoughts: I think the court's conclusions 1 and 3 are pretty clearly correct; I think there's a plausible case that the comment space should be labeled a "limited public forum" rather than a "designated public forum," but that is not relevant here—the key distinction between the two kinds of fora is that restrictions on speech in designated public fora must be content-neutral and in limited publica fora need only be viewpoint-neutral, but here the plaintiffs are alleging viewpoint discrimination, which is equally barred in limited and designated public fora.

The harder question relates to conclusion 2. As I've argued before, even when the President is giving a public speech, he is understood at least in part as expressing his own views. One way we see it is when the President is running for reelection; I think we would recognize his stump speeches as him speaking as a person, not speaking as a government official. Likewise, consider a related issue under another First Amendment provision, the Establishment Clause—even Supreme Court justices who believe that the government may not endorse religion think that it's fine for government officials to express religious views in their speeches. Here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

And this is true even when the speeches discuss the officeholder's political actions, and even announce new programs or appointment decisions.

This having been said, I think the court's position is plausible, especially given that White House Social Media Director and Assistant to the President Daniel Scavino seems to be closely involved with the Twitter feed—this doesn't distinguish the religion-in-a-public-address scenario, but probably does distinguish the reelection stump speech scenario, where the elected official is generally not allowed to use government staff. I suspect that, if the case is appealed, the Second Circuit will agree with the district court's decision here, though it's hard to know for sure.

For a court decision that, contrary to the holding in this case, upheld a governor's decision to block commenters from his Twitter and Facebook feeds, see Morgan v. Bevin (E.D. Ky. 2018).

UPDATE: I added some material to item 1 to make clear that this is about Twitters users' right to use the reply function to communicate to fellow members of the public, and not about any right (which the court specifically rejects) to have their replies be readable by the President.