First Amendment

2nd Circuit Agrees That Trump Cannot Constitutionally Block Critics on Twitter

The court says the "interactive space" created by his account is a public forum, meaning that the president's viewpoint discrimination violates the First Amendment.

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Today a federal appeals court panel unanimously ruled that Donald Trump's habit of blocking critics on Twitter violates the First Amendment. The U.S. Court of Appeals for the 2nd Circuit agreed with U.S. District Judge Naomi Reice Buchwald, who last year ruled that Trump had created a public forum by using his Twitter account for official purposes and opening the "interactive space" associated with it to the general public, making it unconstitutional for him to exclude people whose opinions annoy him.

"The public presentation of the Account and the webpage associated with it
bear all the trappings of an official, state‐run account," the appeals court says. It notes that the account identifies Trump as the "45th President of the United States of America" in "Washington, D.C." and features photographs of Trump "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."

Trump, assisted by White House Social Media Director Daniel Scavino, routinely uses his Twitter account to announce his decisions, defend his policies, promote his legislative agenda, communicate with foreign leaders, and complain about press coverage he views as unfair to his administration. The president has used his account to announce important developments such as his nomination of a new FBI director, his replacement of his chief of staff, and his ban on transgender people in the military. Trump "also used the Account to inform the public about his discussions with the South Korean president concerning North Korea's nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea." The White House has said Trump's tweets are "official statements by the President of the United States," and the National Archives deems them official presidential records.

As for the "interactive space," Trump's account has 62 million followers, and his tweets produce "an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies." By making it difficult for the critics he blocks to participate in that public debate with their own likes, retweets, and replies, the 2nd Circuit says, Trump engaged in impermissible viewpoint discrimination.

While Trump unblocked the plaintiffs and other critics in response to Buchwald's ruling, he also appealed her decision, arguing that the account is private, that it is not controlled by the government, that the discussion it invites does not qualify as a public forum, and that the burdens imposed by blocking certain users are not constitutionally significant. The appeals court rejected all of those arguments.

"Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with," the court says. "Once it is established that the President is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment….While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees….We hold that the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech."

The 2nd Circuit notes that its decision does not mean any government official with a Twitter account has to let all users follow him, regardless of how irksome they are. "Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry," it says. "The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account." Here are some tips for politicians with social media accounts who don't want to face First Amendment lawsuits.

Nor does this decision imply that social media companies have to worry about violating the Constitution when they decide how to regulate speech on their platforms. They are private actors to whom the First Amendment does not apply.

As the court notes, "the fact that government control over property is temporary, or that the government does not 'own' the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes." Twitter's role in this case is analogous to that of a landlord who rents an auditorium for government use. If the government held public meetings in that auditorium, it would be unconstitutional to exclude people from the meetings based on their views. That does not mean the landlord himself, or any private parties who might rent his space, are constrained by the First Amendment.

The lawsuit that led to this decision, which was filed by Columbia University's Knight First Amendment Institute and seven blocked Twitter users, prompted a considerable amount of dismay and criticism. But the 2nd Circuit's ruling seems like a pretty straightforward application of First Amendment principles that constrain the government's actions when it uses a physical space for official purposes and invites public participation. The decision leaves social media platforms free to regulate content and leaves social media users (including government officials, as long as they are acting in their private capacity) free to exclude anyone they don't like from their Twitter accounts or Facebook pages. It simply means that public officials like Trump, in light of the First Amendment, have special obligations when they use social media for official purposes.

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  1. If it’s a Public Forum, how can Twitter ban people based on viewpoint?

      1. You know how Light is supposedly both a particle and a wave?

        1. What the fuck is a particle anyway.

          1. Nobody knows.
            Anyway, it just sometimes looks like a particle and sometimes like a wave. Never both.

            1. You’re just not squinting hard enough.

              1. Squinting very hard at the ruling itself, it must be said that it’s very unfortunate. What will we do if all of these nasty people start flooding our feed with inappropriate “parody” and the like? Hopefully we will be able to find legal precedent for suppressing at least the worst forms of “criticism.” Perhaps we could analogize from restrictions the authorities have placed on inappropriate emails? See, for example, the documentation of our nation’s leading criminal “satire” case at:

                https://raphaelgolbtrial.wordpress.com/

            2. >>>Never both.

              did 4 phish shows in the last month i’ve seen both.

              1. I know Particle is still jamming, but I thought Wave broke up years ago.

                1. lol. Wave should have been shot for “California”

              2. Well, I need more of what you had, then.

          2. A particle is the one brain cell in each Demon-Crat presidential candidate’s brain!

          3. Particle man, particle man
            Doin’ the things a particle can
            What’s he like? It’s not important
            Particle man

            Is he a dot or is he a speck
            When he’s underwater does he get wet
            Or does the water get him instead
            Particle man

    1. They’re saying that the president can’t block people because he’s violating their right to petition the government for redress of grievances, not because he’s violating their right to free speech. They’re wrong, but they don’t care.

      1. That would seem to mean that the government has no ability to control the avenues through which such grievances are offered.

        Which, doesn’t work.

        The decision also seem to hinge on the assertion that by being a public government figure, and saying so, Trumps Twitter feed becomes a public forum. That sounds suspiciously like a taking…

        1. I see it as a taking the way some property laws work.

          “Hey, we know this is your property, but for the last 20 years, the locals have been using it as a throughway, so now it’s kinda public property… thanks for all the property taxes you paid us over the last 30 or so years.”

          1. In my city, it was; “We know it wasn’t like this before, but we’ve decided you can’t do anything within three feet of the boundary of “your” property, and that includes anything overhanging.”

    2. It doesn’t seem to be claiming that Twitter is a public forum, but that Trump’s account specifically is. I don’t think I agree with that either.

      But, if people have a right to engage with Trump on Twitter, then you probably also have a point that banning people from Twitter also violates that right. Maybe they should be required to allow people banned from the rest of the site to still be able to respond to Trump.

      It’s all pretty dumb. Criticizing Trump on Twitter is not a real way to petition the government. It’s just a place for assholes to screech at each other.

      1. But, if people have a right to engage with Trump on Twitter, then you probably also have a point that banning people from Twitter also violates that right.

        Yeah – I think the one would follow from the other. Extending the auditorium analogy, if Trump rents an auditorium for official government business that would render it unconstitutional to exclude anybody whatsoever, the landlord also doesn’t have a right to turn people away, at least from that particular event. IOW, Twitter banning anyone is de facto depriving them of their right to petition the government, if that’s what we’ve decided tweeting at Trump is.

        1. Cant wait to show up to a fancy Pelosi dinner and demand access. If she’s talking to even one constituent we must all be allowed to attend.

          1. You jest but I wouldn’t be entirely against that. They work for us and are paid by us.

          2. Bring enough guys that their security can’t shoo you away. More fun that way.

        2. The other issue is the ruling that his account is a “public forum”. If that’s the case, then any political figure should be forbidden from blocking someone on their social media accounts, no matter how much of a pest they are.

          I realize that Trump has some singularly obsessed people who always respond to every tweet he makes, but that shouldn’t exclude Pelosi, Schumer, or Ocasio-Cortez from the same restriction.

          1. If that’s the case, then any political figure should be forbidden from blocking someone on their social media accounts, no matter how much of a pest they are.

            I think the logic is that he makes no distinction between personal communications and official communications.

            Sort of like how HRC made an insufficient distinction between personal and work emails such that she was unable to exclude her personal emails from FOIA requests.

            But yeah – if AOC is using Twitter to make official proclamations, then according to this ruling she shouldn’t be allowed to block people, either.

            1. I think she did a good enough job “excluding” her personal emails.

              1. I may have let a touch of sarcasm creep into my tone.

          2. “That public “whatever” is called public sentiment.

            And wielding the power to shift it is how we actually achieve meaningful change in this country.”

    3. Read harder, chief. It’s spelled out in the post.

      1. Think harder, chief. If Trump’s Twitter account is a public forum, and Twitter is blocking people from it, then ergo Twitter is denying them their right to redress.

        If a landlord who owns an auditorium has barred Alex Jones from renting the auditorium, because he didn’t like Alex Jones’ guests or the state Alex Jones left it in after his event, he cannot then prevent Alex Jones from attending the OFFICIAL GOVERNMENT MEETING held in his auditorium by Trump, because Constitution.

        If this tortured reasoning and terrible analogy is what you are going with, like the 2nd Circuit did, then be man enough to take it to its logical conclusion

    4. The article and the law explicitly says that Twitter is not beholden to the First Amendment constraints of a public forum yet you acted shocked and confused every single time.

      1. >>>The article and the law …

        authorities, neither.

        >>>”Whether First Amendment concerns are triggered … will in most instances be a fact‐specific inquiry,”

        if not T, no trouble.

        1. To the first point: The Constitution doesn’t say much about social media but it does say a bit about private property.

          Second point: Yes, I agree that it won’t be administered completely but “T” is such an obvious case

          1. >>>does say a bit about private property.

            sure. but then the Robed Dummies get their big brains on it

            >>>such an obvious case

            yeah he’s stupid for the non-free-for-all … i’m not his advisor

      2. No, I’m just much smarter than you and recognize half baked BS when I see it

        1. People who declare how smart they tend not to be that smart.
          Not saying this necessarily applies to you, but it bears some reflection.

          1. Oh, I made no representation about how smart I was, other than merely in comparison to one individual who condescended to tell me I should read half-baked drivel and accept it’s flawed reasoning as gospel

            1. Seems to me that all he was saying was that you should accept the reasoning as the reasoning that they used, not as the absolute truth. It may be half baked drivel (I think it is), but it still makes the distinctions that he claimed it does.

        2. You and others make all these false equivalences that seem to be more based in emotion than principle. Act against Twitter out of spite if you dare.

      3. Sorry Melvin, but that is a logically inconsistent and absurd line of reasoning. If Trump’s Twitter account is a public meeting place and he cannot ban people, then a private party may not ban people from seeing him either. Otherwise, it creates an obvious trap, where a sympathetic private party can ban anyone that a public official cannot.

        1. Absurd no, but convoluted yes. Also not my reasoning but the court’s. I agree that it causes some contradiction but they explicitly said that it was not the responsibility of Twitter to stop politicians from blocking people (as was said in the article). I think the courts should have stayed out of social media moderation in the first place instead of giving even more importance to a leftist website.

    5. My question also. If Trump blocking people violates their Rights, how does Twitter doing the same not?

      1. Because Twitter isn’t the federal government. You all understand this when it advances right wing causes, yet proclaim it’s bullsbit when it doesn’t. Libertarians my ass.

    6. The first sentence of the ruling is simply false, characterizing Trump’s twitter feed as, but for his own choice to block people, “open to the public at large”.

      Just not true. Twitter does *not* make Trump’s account open to the public at large, but *explicitly* engages in viewpoint discrimination based on their own values for access to Twitter.

      When government officials Twitter as a public forum, they are choosing to apply Twitter’s viewpoint discrimination to the forums they are creating, thereby violating the 1st Amendment.

      All government “public forums” need to get off Twitter.

      1. “Once it is established that the President?__________ is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment…”

        FTFY

    7. Exactly.

      Accepting this reasoning, Twitter cannot ban people because it prevents them interacting with the president.

      1. No, Twitter can ban them, but government officials can’t use Twitter as a public forum, because by doing so they exclude those who Twitter bans.

        The obligation is on government officials not to use facilities for public forums which are not in fact open to the public.

  2. Thus Twitter cannot block, ban, or censor anyone either.
    Right?

    1. Watch it with that logical consistency talk, courts don’t take kindly to that.

    2. “Twitter’s role in this case is analogous to that of a landlord who rents an auditorium for government use. If the government held public meetings in that auditorium, it would be unconstitutional to exclude people from the meetings based on their views. That does not mean the landlord himself, or any private parties who might rent his space, are constrained by the First Amendment.”

      1. “it would be unconstitutional to exclude people from the meetings based on their views.”

        Did Trump or his team admit they were blocking people based on their views?

        Or did the court just assume such?

        1. There are lots of Trump haters at campaign rallies (media), but the only ones he says to throw out are the ones who disrupt the speech.

          I’m positive this would have been the analogue the court used to excuse her blockings had Hillary won

          1. If Hillary had won, it would have never come up. Nobody would be suing over getting blocked by Hillary, because everyone knows that Hillary probably never reads her tweets, or any replies to them.

            Trump actively engages on Twitter, so replying to him at least potentially puts anyone in a position to speak directly to the President of the United States. With Hillary, you would just be screeching at her social media intern.

            Obama had a ‘signature’ that he used to denote tweets that he had purportedly written himself. Progressives routinely ejaculated all over themselves to be graced directly with the thoughts of His divine Mind.

            1. Hillary also probably would have used the official POTUS account, which is considered a matter of public record.

        2. Did Trump or his team admit they were blocking people based on their views?

          Not that I’m aware of – I was addressing the contrast with Twitter, not Trump’s rationale.

          I believe the rationale to be something along the lines of “these people are jerks who are disrupting the conversation and we remove them on the same principle that we would remove disruptive parties from a rally.”

          I personally think Twitter has no obligation to host people it doesn’t like, and Trump has no obligation to listen to people he doesn’t want to listen to.

          1. Yep, Twitter has every right to be a publisher, and only publish who they want.

            They don’t have the right to lie about what they’re doing. And publishers don’t have the right to be free from libel suits for what they publish.

            And if their business model doesn’t work if they’re forced to assume all the responsibilities of a publisher, so what?

            Real libertarians understand that the right to chose means the responsibility to bear the costs of your choice

          2. If twitter doesnt want to host people they dont want they need to update their ToS, a contract, with clear and factual determination of who they dont want. They can not apply rules capriciously as they do now. Their are held to standard contract law in this regard.

            1. Their are held to standard contract law in this regard.

              Yes – and as such a damaged party needs to take action against them to enforce their TOS. The TOS are not enforced by the government.

            2. Given that they do violate their own contracts, and are unamerican subversives, the goal should be to sue them out of business and their owners into the poorhouse.

      2. Yeah, but it’s not a Government meeting, it’s more of a campaign rally.
        What government business gets done over Social Media? (cringes at the idea there is an answer)

        1. The twit feed is more like a press conference. Everyone is invited to those to ask questions and make comments, right?

          1. The twit feed is more like a press conference. Everyone is invited to those to ask questions and make comments, right?

            (1) Actually, yes, technically everyone is invited to press conferences — the D.C. Circuit ruled decades ago that the White House couldn’t arbitrarily exclude reporters from press conferences, but needed to have a viewpoint neutral process set up by which people could apply for press credentials. The court recognized that there could be limits to the number of reporters admitted, but that was because of space and security concerns with granting access to the press conference, none of which applies to a Twitter account.

          2. I would pay good money to see Trump ban Jim Acosta from Twitter

            1. I would lay even more money to watch bikers beat Acosta within an inch of his life.

      3. That would appear to suggest that being banned from Twitter does violate your rights.

        1. Yes, unless as you suggest above they structured it so that when the president uses Twitter, all bans and blocks are suspended.

          I was merely pointing out for Nardz’s benefit that the article did, in fact, address this point, as I don’t think he’s making the connection that if Trump weren’t using this specific platform this decision would have no bearing whatsoever on whether or not Twitter can ban people.

          1. That’s a strange reading…

            1. Based on other comments you make below, I don’t think we disagree. I misinterpreted your original comment as meaning that no platform can ban people based on this ruling, rather than just people can’t be banned from contact with Trump specifically.

      4. Which is a poor analogy, because people can be thrown out of townhall meetings for being disruptive.

      5. Except that by excluding certain people would be equivalent to a private event. So if trump cant exclude on Twitter, can a politician ever exclude in an auditorium?

        1. Only democrats. The rule of law is only intended to restrict republicans.

      6. The implication of Trump’s twitter being a public forum isn’t that twitter can’t engage in viewpoint discrimination, but that Trump is violating the 1st Amendment by using twitter as a public forum, as would any government agency, or any other government employee discussing public policy associated with their job.

        All government public forums need to get off twitter and @getongab or another viewpoint neutral platform.

  3. The court seems to be saying they control the communications of a Co-equal branch of government.

    And when/if Trump ignores them?

    1. What if Trump stops Twitter-ing and goes to Gab or Parler?

      1. Or tinder?

        1. I think Tinder is Bill Clinton’s stomping grounds.

  4. What if White House staff receives a letter in the mail addressed to the president and immediately throws it in the trash without opening it? Is that a violation of the 1st amendment?

    1. What if the phone on the President’s desk rings, and he does not answer it?

      1. I guess he’s violating the 1st amendment ?

        1. Seemingly.

          I’m not sure this “public auditorium” angle works, either – if he holds a press conference, is it a 1st amendment violation if they don’t let everyone in the country attend? Or if they don’t open up a microphone for every single person there to address the president directly?

          I’m not so sure that not being giving a direct line of instant communication to the president violates the 1A.

          1. I’m pretty sure it doesn’t, but I’m not a judge, so um, who am I to judge?

          2. Well, a press conference is not a public meeting.

            But neither is Twitter as far as I can see.

            1. Well, a press conference is not a public meeting.

              But it’s as close as is ever going to happen in reality. There is no context in which you can have a “public meeting” at the POTUS level and not turn away at least several hundred million people.

              In pragmatic terms, the right to petition the government can’t mean “any official, any time, any where, without restriction.”

              1. There is no context in which you can have a “public meeting” at the POTUS level and not turn away at least several hundred million people.

                Unless, of course, Twitter is considered a public meeting. But one’s ability to be heard at such a meeting is essentially nonexistent, so I don’t think it really matters.

    2. That would be like Trump deleting a DM. So not a good analogy, I think.

      1. Why not? I guess I wasn’t clear. If only letters from certain people who had written nasty letters in the past were discarded, then would it be a violation?

        1. Letters are private and not published.

          1. Why does that make a difference?

    3. What exactly the right to petition the government for redress of grievances entails is a pretty good question.
      What if the whitehouse just threw away all the letters and other communications they receive. Would that violate the 1st? If the ruling is based on the right to petition rather than the right to free speech, is it relevant whether the exclusion are based on viewpoint or not?

      1. Lobbying.

        1. I think calls and letters from constituents occasionally make a difference if there are enough of them. But, yeah, that’s really the only way to get heard in most cases. Hire a lobbyist or “political consultant”.

      2. Or, in the case of Twitter, what if the President simply scrolls past a given tweet without reading it? Especially if the Twitter handle is something like “Terry The Trump Hater”.

        1. This is how socks are born. Stop giving away user names.

      3. “What exactly the right to petition the government for redress of grievances entails”

        The tree of liberty must be watered from time to time by the blood of patriots and tyrants

  5. The White House has said Trump’s tweets are “official statements by the President of the United States,” and the National Archives deems them official presidential records.

    I’d like to think generations from now people will laugh at the fact that we took anything on Twitter so seriously. Unfortunately, Twitter will probably seem pretty normal compared to whatever system our robot overlords decide upon.

    1. “There was a time when citizens used more dignified modes of communication such as Twitter and Facebook. But with the current moral decline. . . “

      1. Memorizing some of the President’s speeches will be easier for the kids with the character limits. I still remember having to memorize the Gettysburg Address in high school.

        I wonder if kids will have have to memorize the randomness of the punctuation and capitalization too?

  6. So we can conclude that Senator Hawley is on to something then.

    1. Do you all just read the headline and skip to the comment section immediately?

      1. It’s pretty clear one of us hasn’t read the whole post.

        1. You’re right, I haven’t read all the comments

  7. Wow Jacob, your TDS is really strong today.

    “Hey, yay, the Appeals Court ruled that Trump cannot block anybody, but that no one else is affected by this ruling in any way!!11!”

    I guess actually having principles would be too much of a burden for you?

    So, who appointed the idiots who issued this ruling?

    1. To answer my own question:

      The idiot who wrote it was Barrington Daniels Parker Jr., made a Federal Judge by Clinton, promoted to Appeals Court by Obama.

      The two idiots who voted with him are Christopher F. Droney (made a Federal Judge by Clinton, promoted to Appeals Court by Obama) and Peter W. Hall, who was appointed by Bush, so one of Bush’s many failures on the Courts

      1. President Bush nominated Hall to the Second Circuit on December 9, 2003, to fill the vacancy left by Judge Fred I. Parker. Supported by Vermont Senators Jim Jeffords and Patrick Leahy, Hall’s nomination was uncontroversial.

        Well, that’s your first sign it was a bad idea.

        Notable opinions
        Hall wrote United States v. Stewart, affirming the 2004 perjury conviction of Martha Stewart.

        So he’s just an all around scum bag (good people don’t enable perjury traps).

        1. jumpin’ jim jeffords what a maroon.

    2. Why do you think he’s saying “yay”? The article is a straight report on the decision. I don’t see anywhere that Sullum is stating his opinion on the matter one way or another.

      TDSDS is real too.

      1. The lawsuit that led to this decision, which was filed by Columbia University’s Knight First Amendment Institute and seven blocked Twitter users, prompted a considerable amount of dismay and criticism. But the 2nd Circuit’s ruling seems like a pretty straightforward application of First Amendment principles that constrain the government’s actions when it uses a physical space for official purposes and invites public participation.

        I wouldn’t call it an outward “yay” but I would characterize Jacob’s post as a shrugging agreement. Perhaps I’m wrong. I don’t like to attribute motive when it’s not screamingly obvious and I will agree, there’s not any sense of high-fiving here.

        1. He does seem to at least tacitly accept the decision as reasonable. I don’t see that as evidence for TDS.
          I think there is room here for reasonable people to disagree. I think that commenting on Twitter is not important or relevant so I don’t think this particular decision was very good. But there is a legitimate concern that a president might one day isolate himself so thoroughly from dissenting views that it does violate constitutional rights.

  8. So this will apply to all future Presidents, including Democrats.

    Right?

    1. Hate speech is not free speech.

      1. hate speech is a myth.

  9. Also, I say again to Trump’s critics, if you don’t like him using his personal account as an official communications space for the Executive Office, that is an impeachable offense.

  10. I think twitter should ban Trump, honestly. I only want my president to communicate via snap, or tik tok only.

    1. I suspect Trump is one of the best things ever to happen for Twitter as a business. They would never give up that big of a draw to the site.

      1. I suspect Trump is one of the best things ever to happen for Twitter as a business.

        No doubt – IIRC, they were in marked decline prior to 2016.

      2. Just imagine if Trump came out tomorrow and said that he was moving his account to a platform that was more accepting of other viewpoints. Maybe that’s the best solution to the whole Twitter/Google/Facebook banning conservatives thing? He could lift any social media platform out of obscurity with a single post.

        1. Indeed. Trump moving platforms both KILLS Twitter dead and raises the one he goes to exponentially.

          1. Now I totally hope he does that. If he really wants to throw his weight around on social media, that would be the perfect move.

            1. Even better, he could try to get other platforms to compete to be his outlet.

          2. I don’t know about killing Twitter. But it would certainly increase the ad revenue of the new platform.

  11. It’s a problematic ruling. I don’t wanna defend Trump, but I think the courts ruled wrong. The real real problem is that Trump is using an online forum for official government purposes.

    But White House Press Briefings are also used for official government purposes. Can Trump legally dis-invite reporters he doesn’t like? Sure he can! He’s an ass if he does it, but it’s legal.

    The thing is, no matter what he tweets, or what he tells a reporter, or what he shits into a toilet, is official government edict. It’s all meaningless until it’s enacted. Any government functionary who acts on his tweets is both an idiot and potentially breaking the law. The tweet is not legislation, the tweet is not an executive order, the tweet is not an official government act. It’s not official until he puts it on paper and signs it.

    Stuff posted on Twitter is just Trump the person shitting out random thoughts. It’s not a government forum and he’s not posting government edicts and people need to stop acting like he is.

    1. The real real problem is that Trump is using an online forum for official government purposes.

      *ding*ding*ding*ding*

      1. What official purpose? Hes never drafted a memo or executive order on twitter. No tweet has ever been used in court to uphold a regulation. The only time his twitter is mentioned is when a liberal judge is busy determining animus to undermine him.

        1. What official purpose? Hes never drafted a memo or executive order on twitter.

          Well, first off, one can’t draft an executive order on Twitter, I don’t think that’s the spirit of what people are saying when he’s accused of using his account for “official purposes”. It’s pretty clear he uses his personal twitter account is the primary public relations channel for his activities. That’s why I maintain (as I said above) that this could easily be an impeachable offense, not something that requires a special constitutional carve-out for a single account on a private forum. This ruling is complete bullshit.

          As Brandybuck noted above, the admin can kick reporters out of official press briefings, why is twitter different?

          But again, it could be viewed as conduct unbecoming of the office and is thus impeachable.

          1. Public relations isnt an official purpose. In fact laws exist about using government assets for public relations. If anything it is for campaign purposes to support his policies.

      2. lol. yea. They’ll get him on this. If they prosecuted Hillary for top secret emails on private servers, you can be sure they’ll get Trump for saying mean things to news anchors and A/B testing ideas on Twitter.

        Wait… they did prosecute that obviously illegal activity, right?

        No? Then I guess your ideas suck

        1. You do know that impeachment doesn’t require illegal activity, right? Right?

          1. Imagine if you will the backlash of impeachment over tweets. Compare it to actually committing treason and getting away with it.

            It would ruin the democrats for a decade.

            1. The democrat party is so subversive and treasonous that an easily justifiable case can be made for disbanding it as an enemy of the Republic.

    2. The real real problem is that Trump is using an online forum for official government purposes.

      The interesting/amusing thing here is that, because he apparently never bothered to ever use the @potus account that Obama set up, all of his tweets have to go into the National Archives as official communications.

      That means some poor intern had to convert his retweet of the gif of him clotheslining Vince McMahon with the CNN logo on his head, so that it could be pulled up by future researchers.

      1. That means some poor intern had to convert his retweet of the gif of him clotheslining Vince McMahon with the CNN logo on his head, so that it could be pulled up by future researchers.

        This is so great. I love this.

        1. I seriously can’t wait for his Presidential library to open up. It’s going to be like a bastard child of Disneyland and Versailles.

          1. At his age, he won’t be alive when they build it. So it won’t be him designing it.

            I know we’ve gotten past that tradition, but I like presidential libraries located in universities. Therefore I think it would be appropriate for the Trump Presidential Library to be located… in a filing cabinet in the admin office of the double wide they use for Trump University.

    3. If Trump’s use of twitter is ruled as creating a “public forum”,
      Twitter isn’t violating the first amendment with their viewpoint discrimination, but Trump *and any other government agency or employee* are if they use Twitter as a “public forum”.

      By this ruling, all government agencies need to get off twitter. And all elected officials who discuss policy, which is all of them too.

      Best ruling evah!

      Everybody, @getogab!

    4. But White House Press Briefings are also used for official government purposes. Can Trump legally dis-invite reporters he doesn’t like? Sure he can! He’s an ass if he does it, but it’s legal.

      No, he can’t, and no, it’s not legal — Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977) expressly found that there is a sufficient First Amendment interest in getting a press pass to attend White House Press Briefings that due process is required to deny or revoking a press pass and that the grounds for denying or revoking a press pass needed to be based on legitimate security reasons and space limitations in the briefing room.

      1. So where’s the due process on my lack of a press pass?

        I looked in my mailbox again today, but didn’t find one.

        1. Did you apply for one?

          I think the space limitations part allows them to deny a pass to someone who isn’t employed by a major news organization. Of course, defining what counts as a major news organization gives more opportunities for corruption.

  12. So in its clear and reasoned opinion, Trump and only Trump is constrained from blocking people on Twitter?
    Whiskey
    Tango
    Foxtrot

    1. “That public “whatever” is called public sentiment.

      And wielding the power to shift it is how we actually achieve meaningful change in this country.” – AOC, on conducting politics and government thru social media

      1. >>>actually achieve meaningful change in this country.” – AOC

        cutie’s gonna be real disappointed when Reality knocks @her door.

  13. No. The 2nd Circuit ruled that Twitter, contrary to their TOS must prevent Trump from blocking people. The order applies to Twitter just as much or more than it does to Trump. What the court is saying here is that Twitter is obligated to allow people to respond to Trump’s feed. It is a subtle difference but an important one. And I doubt reason would like where this reasoning would end if it remains the law.

    1. No doubt. Reason hates responsibility and seems to relish tortured legal interpretations.

    2. What are you talking about? The ruling very clearly applies only to the actions of public officials and not Twitter. Reason explained it like they were debating with a 12 year old and you still seem to not understand.

      1. Read the case dipshit. The case applies to the accounts of public officials. That means Twitter can’t allow public figures to block users

        1. The ruling states that public figures can’t block people and that it is their responsibility not to, not Twitters. Did you skip the auditorium metaphor for the grade school readers? It’s applicable to your argument.

          1. However, the court is saying that the account itself is now a “public forum”. That means that Twitter IS restricted on how it deals with that private account. This has much greater repercussions than just Donald Trump not being allowed to block users.

            Remember, in the end, Donald Trump doesn’t OWN his twitter account, Twitter does. My reading of this is his account is now declared “public space” and subject to the rules that govern public spaces.

            You’re viewing this in way to narrow a way.

            1. Just like how I don’t actually own my World of Warcraft account.which is why I can’t stop Blizzard Entertainment GMs from banning cool names like ‘Dildo Gaggins’, or ‘Fukstick’.

          2. Twitter supplies the software to block people. The pols aren’t coding that themselves.

            So, Twitter will have to remove that functionality from politicians’ accounts, right?

            1. Or just repeatedly slap Trump with injunctions demanding that he unblock user X. I have no idea how this will work, but yes, in theory, it could mean that one account and one account only is now blocked from blocking.

              1. Yeah, I think this is a stupid ruling. Based on the case, I think the courts were very cautious as to not involve Twitter’s responsibility. So they are basically just telling politicians not to block users and telling blocked users to sue. But I don’t think they are going to tell Twitter to intervene.

                1. Twitter banning a user now becomes a violation of that user’s civil rights, as Twitter would be preventing the banned user from being able to petition the government – that is the implication of their ruling

                  1. If it’s not a direct implication already, then it seems so evident that it will be soon enough.

                    1. Time for a massive class action suit against Twitter!

  14. I honestly don’t use Twitter very much at all. But, I have a question. Lets say Trump tweets “America Great!”. Joe Lefty then tweets “Trump Sucks!”. Trump then blocks Joe from Trump’s feed. Is the court telling us that that prevents Joe from free speech? He is perfectly free to tweet whatever the hell he wants. He can even get Trump’s tweets from another source, and retweet them with his own comments, right?
    Or is the court saying this violates the right to petition the government for redress of grievances. That is just ludicrous to say that because Joe was blocked from Trump’s Twitter feed, that he can’t petition the government?????
    I agree with most other people posting so far that I really don’t get this.

    1. It’s an idiotic ruling for exactly the reasons you list

    2. >>>I really don’t get this.

      means *they’re* morons … you’ve shown you’re not.

  15. “Nor does this decision imply that social media companies have to worry about violating the Constitution when they decide how to regulate speech on their platforms. They are private actors to whom the First Amendment does not apply.”

    Again…how does Trump blocking people violate Rights but Twitter doing so does not?

    Trump can only block people because Twitter included that in their software.

    1. “Again…how does Trump blocking people violate Rights but Twitter doing so does not?”

      The article makes this pretty clear. Trump is a public official, a president, no less, and Twitter is not.

      I have a solution for this. Trump can publish a list of all the names of Twitter users he’d like to censor, and let his Twitter followers know that he wants them to block the names themselves, as the law prevents him from doing so. There is nothing to stop non president users from blocking other users.

      1. There is nothing to stop non president users from blocking other users.

        And now when a Democrat gets elected, there’s nothing stopping the employees at Twitter from banning the President’s critics.

        1. Twitter users sign a contract. If they violate the terms of the contract they can be banned. This is true, even in the unlikely event that a non-Republican is elected.

          But you have misunderstood my solution. It calls on Trump’s Twitter followers to block those Trump Twitter followers whose opinions Trump would like to censor, but can’t himself for the legal reasons outlined in the article. This is to further Trump’s own agenda and cater to his need to control the lines of communication. It’s not about Twitter’s partisan agenda, which they are within their rights to pursue.

          1. Part of Twitter’s “contract” is that users are allowed to block trolls.

            Courts have ruled against that.

            How can the contract stand when Twitter’s part is, apparently, illegal now?

            1. “How can the contract stand when Twitter’s part is, apparently, illegal now?”

              Twitter presumably has a capable team of lawyers on the payroll and enough politicians beholden to them. Remember, the legal system is the best money can buy. It is eminently gameable if you’ve the time and money.

              But you have misunderstood my solution. It calls on Trump’s Twitter followers to block those Trump Twitter followers whose opinions Trump would like to censor, but can’t himself for the legal reasons outlined in the article. This is to further Trump’s own agenda and cater to his need to control the lines of communication. It’s not about Twitter’s partisan agenda, which they are within their rights to pursue.

          2. Twitter users sign a contract. If they violate the terms of the contract they can be banned.

            There is no contract when one party can unilaterally change the contract.

            1. It doesn’t matter. If Trump doesn’t want his Twitter followers to be exposed to unflattering information about him, he can publish a list of offending names and ask his followers to block them.

    2. Because Twitter does not have a monopoly on violence (the only form of punishment libertarians seem to recognize as enforcement), they are free to suppress points of view, especially during election periods, all while telling the public that there is no censorship (just don’t tweet “a woman cannot be a man”).

      If we can get Twitter can suppress people for brief enough periods of time, during the right times, we can get the right people elected. This is the government’s way of winking at Twitter and saying “when a Democrat gets elected, you have to do the banning, not us.”

      I’m being a bit silly here, but I do think this is how Twitter will deal with annoying people bothering the next Democrat that becomes president.

      1. See: all the banned AOC parody accounts.

        A thousand OBLs cry in the darkness

  16. The only argument that I find somewhat reasonable is that if Twitter suspends the account of an American citizen than they are also depriving that person of the ability to engage with the tweets of the President and other elected officials. I think we would be better off letting politicians block people and have the courts/government out of it completely, but I understand the contradiction that follows from the court decision.

    Is there another argument I should consider?

    1. I don’t know if there’s “another argument” to consider, but this ruling is a godawful mess that essentially declares a 4’x4′ block of space in Twitter’s backyard a public forum and therefore subject to responsibilities and restrictions that the rest of the parcel isn’t.

      <a href="What official purpose? Hes never drafted a memo or executive order on twitter.

      Well, first off, one can’t draft an executive order on Twitter, I don’t think that’s the spirit of what people are saying when he’s accused of using his account for “official purposes”. It’s pretty clear he uses his personal twitter account is the primary public relations channel for his activities. That’s why I maintain (as I said above) that this could easily be an impeachable offense, not something that requires a special constitutional carve-out for a single account on a private forum. This ruling is complete bullshit.

      As Brandybuck noted above, the admin can kick reporters out of official press briefings, why is twitter different?

      But again, it could be viewed as conduct unbecoming of the office and is thus impeachable.”>The only question I have if this becomes precedent, what will people feel when the wrong people are affected by it?

      1. Shit, copy/paste fail. Proper post:

        I don’t know if there’s “another argument” to consider, but this ruling is a godawful mess that essentially declares a 4’x4′ block of space in Twitter’s backyard a public forum and therefore subject to responsibilities and restrictions that the rest of the parcel isn’t.

        The only question I have if this becomes precedent, what will people feel when the wrong people are affected by it?

        1. Fox News is told the lawsuit likely would focus on Ocasio-Cortez’s popular and active @AOC account, which has more than 4.6 million followers. Ocasio-Cortez has maintained a much smaller and rarely used official account, @RepAOC, with only 171,000 followers, but has used her personal @AOC account to discuss politics and engage with constituents and colleagues regularly.

          1. Right, the ruling is either too narrow (i.e. only concerning Trump) and contradictory, or too broad and unenforceable. Also, if the courts start interpreting the act of engaging with certain Twitter accounts to be a free speech right, than it seems a small step to force Twitter to allow all American citizens to use Twitter, similarly to what Senator Hawley thinks. Obviously, I don’t like that idea so I’ll take the non-interventionist opinion and state that the courts should have stayed out of this in the first place.

            1. That was exactly my point above. If the courts can declare even a tiny piece of Twitter (or any other forum) a “public forum” or what I think some legal scholars used to call “a public concern” then I don’t see how this can’t bleed exactly into what Hawley is trying to push, even if not exactly what he intends to push. Is 1,000,000 followers enough to be considered a “public concern”? Then that means patreon can’t ban or restrict Sargon of Akkad– of course assuming it might take a court case to recognize Akkad’s account as a “public concern”.

              1. Could the NYT refuse to print a LttE?
                I don’t think so.

  17. Oh, you know what else is great about this ruling? Twitter can no longer ban Donald Trump’s twitter account.

    1. Would them “marking” his “offensive” posts be permitted?

      1. In all seriousness, probably, yes. I don’t see anything in the ruling that suggests otherwise. But who knows, if it’s now considered a “public square” that might be seen as “interfering with” said public square. If this ruling stands, this is gonna be fun times for all on the internet.

  18. Regardless of the philosophical underpinnings of the decision, the practical effects are going to be a bitch. How the hell is Trump going to respond to every single critic with a “Your a pathetic Loser and Nobody likes you!” tweet? There’s only so many hours in the night!

    1. In the first place, why does Trump have to reply to any Twitter critic?
      Banning by not listening isn’t a crime or a violation of the 1st.

  19. IIRC from prior rulings, the point is that Trump can’t block someone from seeing his tweets. It’s not that he can’t mute them so Trump doesn’t have to see them.

    Important distinction, I think.

    1. But you don’t even need an account to see Trump’s tweets. How could he prevent or block anyone from seeing them?

  20. If this holds, that the President can’t block a Twitter user because he’s on a public forum, then it must follow that NO elected person can block any Twitter user, for the same reason. For any elected person, “once on Twitter, always on Twitter”. Probably the same reasoning prevents any elected person ever deleting a Twitter entry. And it looks to me like an ugly situation for all. And no doubt the reasoning applies to all other such public forums (fora?).

  21. what about celebrities who would be public figures for defamation purposes are their accounts public fora also?

    does Khloe have a private account? she’s never *just Khloe* now.

  22. I might get on Twitter now just to start trolling progs.

    1. Don’t do it!

  23. I thought the first amendment specifically says that CONGRESS “shall pass no law…” well so much for judges caring about the actual text of the constitution.

    And then this about social media companies. “They are private actors to whom the First Amendment does not apply.” Since when is the first amendment seen as some sort of restriction that is thrown around on people?

    It applies to CONGRESS, ladies and gentlemen, and nobody else. Ever.

    1. Yeah but, Orange Man Bad.

  24. “The 2nd Circuit notes that its decision does not mean any government official with a Twitter account has to let all users follow him, regardless of how irksome they are. “Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry,” it says. “The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”

    So leaving the path open to arbitrary enforcement of this standard, so that it does not apply to “normal” politicians.

    1. I think it is a statement that this court is staking out its position on this issue, but understands that it won’t be the final say on the matter.

  25. So is he prohibited from deleting messages from people he doesn’t like? Is someone assigned to make sure he reads all the tweets.

  26. I’m in favor of the *intent* of this ruling, which as far as I can see, seeks to expand the rights of individuals, and curtail the ability of state actors to diminish those rights.

    I am not sure if the logic is sound however. It seems to deprive Twitter control over its own property.

    I do think however it is also a small glimpse into what would happen if Twitter, or social media generally, is regarded as a genuinely public forum, which is what some here want to see happen. Twitter management would effectively lose control over what it may do with its own property and that is troubling.

    1. “… this ruling, which as far as I can see, seeks to expand the rights of individuals, and curtail the ability of state actors to diminish those rights.”

      You must not believe that “state actors” are also individuals with rights. Forcing someone to accept the speech of someone else, as if to allow them the freedom of exspression, is inexcusable. Being President changes nothing. This is comparable to saying that the president is not allowed to go to church because of the first amendment’s separation of church and state.

      1. “This is comparable to saying that the president is not allowed to go to church because of the first amendment’s separation of church and state.”

        Or that he must go to *all* churches to avoid ‘establishing’ one.

      2. Of course Pedo Jeffy is on the wrong side of this. He’s nearly always on the wrong side of everything. Like wanting to increase the supply side of child rapists in the US. So much so that he is a big booster for importing child rapists through illegals means.

      3. Forcing someone to accept the speech of someone else, as if to allow them the freedom of exspression, is inexcusable

        So I’m guessing we shouldn’t allow Ben Shapiro to speak on college campuses? If that forces the college community to “accept the speech of someone else.”

        1. Possibly, since colleges have boards and committees with the freedom to establish policies on this type of thing. but the point is that this has nothing to do with the actual first amendment.

  27. That being true, jow can the twits at Twitter ban folks like John Lott and his group when they publish factually correct information readily available on the mainstream news? Twitter can’t have it both ways. Either Trump cannot ban people because it is not HIS space, thus Twitter cannot ban people because its THEIR space… or both can ban. Since Twitter already ban, then Trump can as well.

    I do believe he can set clear standards for what is permissible on his feed… things such as potty language, (fill in the blank) bashing, posting the same thing repeatedly, blatant disrespect, etc. But he’d have to enforce that equally for all. Which Twitter do not.

    1. Would YOU have to have clearly defined “fair” standards applied equally to every Joe Blow on YOUR twitter feed?

  28. Representative Alexandria Ocasio Cortez blocked Dov Hikind from her Twitter account. Hikind is well known in NYC politics, having been a member of the NY state assembly for over 30 years and a rather conservative Jewish politician from Brooklyn. He just filed a lawsuit, siting this ruling against Trump, to get unblocked by AOC.

    1. “He just filed a lawsuit, siting this ruling against Trump, to get unblocked by AOC.”

      Goose, meet gander.

      1. If he wins his suit, I am starting a twitter account just to troll that stupid bitch. Oh what fun that could be.

  29. So to extend the analogy, if the government rents an auditorium
    (a sporting arena, for example) from a private party, people attending the event must be allowed to carry legally owned firearms into the venue, otherwise it is a violation of their second amendment rights. The auditorium is not a government building and prohibitions against firearms in government buildings would not apply, and the building is not private property owner cannot violate gun owners’ Constitutional rights while the lease is in effect.

    Do I have this correct?

  30. If someone blocks you on Twitter, you can still see that person’s twitter page (feed?) when you log out of your account. You can still respond to the blocker’s posts in your own page, and others can retweet it. For all intents and purposes, your 1A rights have not been violated.

    You have no constitutional right to enter into a debate or insert your opinion on the political process, even at a public forum. If a person goes on a rant during a Q&A session the event organizers can just take the mike away from him and tell him to remain quiet. Twitter lets you essentially take the mike away from people. They can express themselves in their own space.

    I’m baffled by this court decision. What the heck is going on? The implication of this decision will not stop just at politicians’ twitter page.

    1. It’s not like this federal judge knows anything about technology and Twatter for that matter.

      This is about stopping Trump at all costs. I MEAN THIS TRUMP IS ROLLING GOVERNMENT BACK THAT SOCIALISTS HAVE SPENT DECADES IMPLEMENTING!

  31. […] Eugene Volokh, who has been supportive of the Plaintiff’s position in this case in the past, comments: […]

  32. […] on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics […]

  33. […] on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics […]

  34. […] on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics […]

  35. […] on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics […]

  36. […] on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics […]

  37. […] on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics […]

  38. […] week, two days after he lost a First Amendment lawsuit brought by critics he had blocked on Twitter, Donald Trump promised to […]

  39. […] week, two days after he lost a First Amendment lawsuit brought by critics he had blocked on Twitter, Donald Trump promised to […]

  40. […] week, two days after he lost a First Amendment lawsuit brought by critics he had blocked on Twitter, Donald Trump promised to […]

  41. […] week, two days after he lost a First Amendment lawsuit brought by critics he had blocked on Twitter, Donald Trump promised to […]

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