Free Speech

Second Circuit: Unconstitutional for @RealDonaldTrump to Block Twitter Users Based on Viewpoint

The reasoning would apply to other politicians' accounts that are seen as "official" rather than personal, and to accounts that are run by government entities (such as school boards) rather than individual politicians.

|The Volokh Conspiracy |

From today's opinion in Knight First Amendment Institute v. Trump: written by Judge Barrington D. Parker and joined by Judges Peter W. Hall and Christopher F. Droney [UPDATE: see this post by Venkat Balasubramani & Prof. Eric Goldman (Technology & Marketing Law Blog) for more] [FURTHER UPDATE: see my follow-up post, about how President Trump's ability to restrict things on his Twitter account differs from Twitter's ability to do so]:

[A.] The President contends that [his @RealDonaldTrump Twitter] Account is exclusively a vehicle for his own speech to which the Individual Plaintiffs have no right of access and to which the First Amendment does not apply.

Secondarily, he argues that, in any event, the Account is not a public forum and that even if the Account were a public forum, blocking the Individual Plaintiffs did not prevent them from accessing the forum.

The President further argues that, to the extent the Account is government‐controlled, posts on it are government speech to which the First Amendment does not apply.

We are not persuaded. We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that 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.

[B.] The President concedes that he blocked the Individual Plaintiffs because they posted tweets that criticized him or his policies. He also concedes that such criticism is protected speech.

The issue then for this Court to resolve is whether, in blocking the Individual Plaintiffs from the interactive features of the Account, the President acted in a governmental capacity or as a private The President maintains that Twitter is a privately owned and operated social media platform that he has used since 2009 to share his opinions on popular culture, world affairs, and politics.

Since he became President, he contends, the private nature of the Account has not changed. In his view, the Account is not a space owned or controlled by the government. Rather, it is a platform for his own private speech and not one for the private expression of others. Because the Account is private, he argues, First Amendment issues and forum analysis are not implicated. Although Twitter facilitates robust public debate on the Account, the President contends that it is simply the means through which he participates in a forum and not a public forum in and of itself.

No one disputes that the First Amendment restricts government regulation of private speech but does not regulate purely private speech. If, in blocking, the President were acting in a governmental capacity, then he may not discriminate based on viewpoint among the private speech occurring in the Account's interactive space.

As noted, the government argues first that the Account is the President's private property because he opened it in 2009 as a personal account and he will retain personal control over the Account after his presidency. However, 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. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52 (1975) (holding privately‐owned theater leased to and operated by city was public forum). {5 See also Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727, 749 (1996) (plurality opinion) (stating that "public forums are places that the government has opened for use by the public as a place for expressive activity" (internal quotation marks omitted)); S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 132 (considering "question of whether a particular piece of personal or real property owned or controlled by the government" is a public forum (emphasis added)).} Temporary control by the government can still be control for First Amendment purposes.

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. First, the Account is presented by the President and the White House staff as belonging to, and operated by, the President. The Account is registered to "Donald J. Trump, '45th President of the United States of America, Washington, D.C.'" App'x at 54. The President has described his use of the Account as "MODERN DAY PRESIDENTIAL." The White House social media director has described the Account as a channel through which "President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!" The @WhiteHouse account, an undoubtedly official Twitter account run by the government, "directs Twitter users to 'Follow for the latest from @POTUS @realDonaldTrump and his Administration." Further, the @POTUS account frequently republishes tweets from the Account…. [A]ccording to the National Archives and Records Administration, the President's tweets from the Account "are official records that must be preserved under the Presidential Records Act."

Second, since becoming President he has used the Account on almost a daily basis "as a channel for communicating and interacting with the public about his administration." The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce "matters related to official government business," including high‐level White House and cabinet‐level staff changes as well as changes to major national policies. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives.

Finally, he uses the "like," "retweet," "reply," and other functions of the Account to understand and to evaluate the public's reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non‐private nature of the Account and its interactive features are

The government's response is that the President is not acting in his official capacity when he blocks users because that function is available to all users, not only to government officials. However, the fact that any Twitter user can block another account does not mean that the President somehow becomes a private person when he does so. Because the President, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him.

Here, a public official and his subordinates hold out and use a social media account open to the public as an official account for conducting official business. That account has interactive features open to the public, making public interaction a prominent feature of the account. These factors mean that the account is not private. Accordingly, the President excluded the Individual Plaintiffs from government‐controlled property when he used the blocking function of the Account to exclude disfavored

Of course, not every social media account operated by a public official is a government account. 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. 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.

But these are concerns for other cases and other days and are ones we are not required to consider or resolve on this 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.

[C.] The government makes two responses. First, it argues that the Account is not a public forum and that, even if it were a public forum, the Individual Plaintiffs were not excluded from it. Second, the government argues that the Account, if controlled by the government, is government speech not subject to First Amendment …

[1.] To determine whether a public forum has been created, courts look "to the policy and practice of the government" as well as "the nature of the property and its compatibility with expressive activity to discern the government's " Opening an instrumentality of communication "for indiscriminate use by the general public" creates a public forum. 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. We hold that this conduct created a public forum.

If the Account is a forum—public or otherwise—viewpoint discrimination is not permitted. A blocked account is prevented from viewing any of the President's tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is therefore a symbolic message with expressive content.

Significantly, the parties agree that all of this expressive conduct is communicated to the thousands of users who interact with the Account. By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment

[2.] The government … argues that blocking did not ban or burden anyone's speech. Specifically, the government contends that the Individual Plaintiffs were not prevented from speaking because "the only material impact that blocking has on the individual plaintiffs' ability to express themselves on Twitter is that it prevents them from speaking directly to Donald Trump by replying to his tweets on the @realDonaldTrump web "

That assertion is not well‐grounded in the facts presented to us. The government is correct that the Individual Plaintiffs have no right to require the President to listen to their speech. However, the speech restrictions at issue burden the Individual Plaintiffs' ability to converse on Twitter with others who may be speaking to or about the President. {If, for example, the President had merely prevented the Individual Plaintiffs from sending him direct messages, his argument would have more force.} President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. 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

{The government extends this argument to suggest that the Individual Plaintiffs are claiming a right to "amplify" their speech by being able to reply directly to the President's tweets. The government can choose to "amplify" the speech of certain individuals without violating the rights of others by choosing to listen or not listen…. That is not what occurred here; the Individual Plaintiffs were not simply ignored by the President, their ability to speak to the rest of the public users of the Account was burdened. In any event, the government is not permitted to "amplify" favored speech by banning or burdening viewpoints with which it disagrees.}

The government's reply is that the Individual Plaintiffs are not censored because they can engage in various "workarounds" such as creating new accounts, logging out to view the President's tweets, and using Twitter's search functions to find tweets about the President posted by other users with which they can

Tellingly, the government concedes that these "workarounds" burden the Individual Plaintiffs' speech. And burdens to speech as well as outright bans run afoul of the First Amendment. When the government has discriminated against a speaker based on the speaker's viewpoint, the ability to engage in other speech does not cure that constitutional shortcoming.

Similarly, the fact that the Individual Plaintiffs retain some ability to "work around" the blocking does not cure the constitutional violation. Neither does the fact that the Individual Plaintiffs can post messages elsewhere on Accordingly, 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.

[3.] Finally, the government argues that to the extent the Account is controlled by the government, it is government speech. Under the government speech doctrine, "[t]he Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak" about governmental endeavors. For example, when the government wishes to promote a war effort, it is not required by the First Amendment to also distribute messages discouraging that effort.

It is clear that if President Trump were engaging in government speech when he blocked the Individual Plaintiffs, he would not have been violating the First Amendment. Everyone concedes that the President's initial tweets (meaning those that he produces himself) are government speech.

But this case does not turn on the President's initial tweets; it turns on his supervision of the interactive features of the Account. The government has conceded that the Account "is generally accessible to the public at large without regard to political affiliation or any other limiting criteria," and the President has not attempted to limit the Account's interactive feature to his own speech.

Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President's tweets, the message is identified as coming from that user, not from the President.

There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President's tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation….

I had earlier expressed some skepticism about this position, because I thought that there was a good argument that @RealDonaldTrump—which was created well before President Trump was elected—was Trump's personal account, even if it was used to announce governmental decisions (just as an official's campaign speech is the politician's own speech, even if it announces some important decisions). But I think the Second Circuit's analysis is quite persuasive, especially since "The President operates the Account with the assistance of defendant Daniel Scavino, the White House Director of Social Media and Assistant to the President" (a matter the court notes but doesn't rely on); this, I think, helps distinguish the account from campaign speech, which federal law generally says must be created without the help of government employees.

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  1. Anything which reduces his use of Twitter should be seen as a good thing regardless of one’s tribe.

    1. A blessing in disguise for Trump, even.

      1. What we really need are laws that will prevent anyone from posting inappropriately deadpan “parody” on Twitter with the intent to damage the reputation of our national leader. There is good precedent in New York. See the documentation of our nation’s leading criminal “satire” case at:

        https://raphaelgolbtrial.wordpress.com/

    2. One man’s opinion.

  2. So I have a right to respond to Trump’s tweets but then I can be banned from twitter for their content.

    1. Yeah this doesn’t make much sense. This seems like it would automatically transform Twitter into a public access forum yet Twitter itself is still free to ban or hinder me from exercising such access for breaking any one of their thousands of vague unwritten rules like saying there are only two genders.

      1. It is interesting – if the President can exclude certain press from the WH briefing room but not from twitter, I guess the distinction is that blocked users can’t see what he’s saying at all.

        As I said, with any luck this’ll give rise to some new modality of First Amendment jurisprudence from the Supreme Court, because this opinion looks muddier than a Kennedy opinion right now.

        1. people can far more easily circumvent a user block than being excluded from a briefing by visiting Drumpf’s tweets unlogged or creating a new account so a block in and of itself isn’t that big a deal. OTOH Twitter regularly employs a suite of tools that can far more significantly hinder your ability to communicate such as bans, suspensions, ranking manipulation, and shadow banning. The rules are also kept deliberately nebulous so that they essentially do whatever they want. Ie smack talking antifa is verboten but saying you want to feed a magahat kid into a woodchipper is fine. So you have this weird quantum state where you have a right that can be abrogated by a private corporation but not a particular government official.

          1. I don’t think it’s at all as clear as you do that a private platform being used for a government function is in any way no longer treated as private.
            Though I can absolutely see the argument, that would be new law so far as I know.

            As for you characterization about what twitter allows, you sound hilariously like the reverse of the liberal forums that keep insisting @jack is a secret Nazi enabler.

            1. If Trump can not do X without violating the First Amendment rights of people Y, then he clearly can not subcontract out the First Amendment violation to a private company.

              So if Trump can not block Americans from reading his tweets and responding to them, neither can Twitter.

              Twitter can chose to not let Trump use their private forum. But having chosen to let him use it, they’re bound by the same constraints he is

              1. If Trump can not do X without violating the First Amendment rights of people Y, then he clearly can not subcontract out the First Amendment violation to a private company.

                Very likely true. But…

                So if Trump can not block Americans from reading his tweets and responding to them, neither can Twitter.

                …this does not follow in any way. That Trump can’t contract with Twitter to do X does not mean that Twitter cannot do X on its own, when it is not acting as an agent for Trump.

                1. Trump knows that Twitter blocks people, and still uses them.

                  One can therefore draw the inference (which would be true in the case of President Obama, for example) that Trump is there because they block those people.

                  “It’s legal for Trump to use Twitter, but not for Obama” does not qualify as actual judicial reasoning.

                  If it’s a violation for Trump to block people, then it’s a violation for Trump to use other people to block people.

                  Trump is using Twitter, which blocks people.

                  Either Twitter must stop allowing Trump to use their private property as a public forum, or else their private property IS a public forum, and they may not block people for anything other than actual US criminal behavior.

                  Nothing else allows the ruling to make any sense

                  1. If it’s a violation for Trump to block people, then it’s a violation for Trump to use other people to block people.

                    That may indeed be true, but it still has nothing to do with the facts. Trump is not “using” Twitter to block them in the alternate scenario; Twitter is doing so entirely on its own without any input from Trump.

            2. It’s actually pretty interesting, with the question, can Twitter suspend or block any accounts, with the knowledge that by doing so, they prevent people from accessing what is now a designated public forum.

    2. Yes – Different actors restricting speech.
      Twitter, a private actor, isn’t subject to 1st amendment restrictions.
      Trump, the President, is.

      It’s actually pretty simple

      1. Not really, if you wanted to hold a sign protesting drumpf would it fly if you got beaten up by private citizens in MAGA hats rather than a state police force?

        1. Would it fly? You mean making comparisons of apples to bananas, right? Because your example is so far beyond actual speech elements that there’s no comparison.

        2. AmosArch: If you get beaten up by private citizens, that’s a crime — but not a First Amendment violation, because private citizens aren’t bound by the First Amendment. If you get beaten up by the state police, acting under color of law, that is a First Amendment violation.

          If you get kicked out of a person’s home or business for expressing views he dislikes, that’s neither a crime nor a tort — but in any case still not a First Amendment violation. If you get kicked out of a government-controlled forum for speech a government actor dislikes, that generally is a First Amendment violation.

          1. Logically it is either a public access forum or it isn’t. Its like putting a speaker’s podium inside a house. You can’t rationally argue that the public has the right to access said podium one moment then turn around and say they have no right to access it the next.

            1. If I’m reading things right, the Second Circuit didn’t hold that *all* of Twitter is a public forum – it held that, specifically, those Twitter threads created by the president’s account become a public forum.

              1. That’s nice. But if Twitter bans me from Twitter, they’re blocking me from access to the public forum of Trump’s tweets.

                Once they’ve consented to be that public forum, they’re bound by the same rules.

                So, they can kick Trump off, or they can not kick ANY Americans off, other than, perhaps, for criminal activity.

          2. “If you get beaten up by the state police, acting under color of law, that is a First Amendment violation.”

            I would have thought that would be a 5A violation, not a 1A violation,

          3. An interesting physical world example, then: Could the President conduct all of his government business on private grounds, and allow the private party to exclude anyone that didn’t agree with the President?

            Is it acceptable for the private owner and supporter of a government speaker to kick people out the government-controlled forum for speech, because the private owner wants to please the government speaker?

    3. That’s not what blocking means, at all. Not even close.

  3. By the court’s logic, shouldn’t the government be barred from using web filters or email filters as well?

    1. Trump uses the White House for announcements. By this “logic”, he can’t stop citizens from coming to his office to yell at him.

      1. You see no difference between typing a response to the President on your home computer and entering the White House to yell at him.

        Is that right, Bob?

        1. Burden is burden.

          “the fact that the Individual Plaintiffs retain some ability to “work around” [access to the White House] does not cure the constitutional violation. Neither does the fact that the Individual Plaintiffs can [yell] messages elsewhere”

      2. That would be the case if the Oval Office were a public forum, but it isn’t. The public is not generally free to go there and speak with Trump, let alone to yell at him. If the general public were allowed in to speak with him, then he could not single out specific people to ban (or at least not for viewpoint-related reasons).

  4. I like this line of cases. Meaty Constitutional issues, a rather minor impact on the real world.

    I hope this geeky fun gets to go to the Supreme Court.

    1. I was hoping for some mention of analysis according to the rules for a “limited public forum.” That would really get the constitutional questions flowing!

      1. Yeah, this opinion was disappointing doctrinally.

  5. I would think the court that decided Manhattan Community Access Corp. v. Halleck would reverse this.

    1. That case involved a private company deciding whose speech to allow. This case involves a public official deciding whose speech to allow.

      1. Baloney. Trump blocking people on Twitter is not stopping anyone from speaking. It’s just blocking them from speaking to him, or from using his podium.

  6. Hypothetically, can Trump change the way he manages the account to re-establish the right to block users? What if he walks outside the Oval office to the residence?

    And if not, would this constitute a “taking” – by the either the President’s or the courts – of Donald Trump’s property interest in his Twitter account?

    1. Trump can mute users. Alternatively users can log out and see all his tweets. Arguments on both sides are lacking in facts and demonstrate a poor understanding of how the twitters work.

  7. Its hilarious that people think anyone reads or cares about their twitter responses to litigate this. Twitter responses make wacky corner preachers seem calm and rational.

    I wonder if Scavino knows he can just mute people instead of blocking and they will not even know?

    1. Apparently not. Merely experiencing an emotion upon reading or hearing a news headline makes everyone a fucking expert.

    2. “I wonder if Scavino knows he can just mute people instead of blocking and they will not even know?”

      Would they have taught that at the training course for a golf caddy?

  8. The government is correct that the Individual Plaintiffs have no right to require the President to listen to their speech. However, the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President.

    I don’t find the arguments that government Twitter is a public forum persuasive, but opinion seems to leave open the possibility for easy workaround. Trump (or any official) could have their tech folks code up a solution that connects to Twitter’s API and simply filters out Twitter handles he doesn’t want to see.

    No interactions would be blocked, the public can converse with each other, but Trump could prevent anyone he wants from communicating with him. Kind of makes the whole thing seem pretty silly.

    1. “Trump could prevent anyone he wants from communicating with him.”

      I think muting on Twitter does this.

  9. “…The President utilizes White House staff to post tweets and to maintain the Account…”

    I almost think the court could have stopped its analysis at this point. If White House staff were used to help operate Trump’s Twitter account, then it seems obvious to me that it is no longer private…even under the most relaxed of standards. (But, upon leaving the White House after his presidency ends, it should again become private, one assumes.)

  10. The claim that the President’s account is a public forum (?!) is absurd, and indicates a complete misunderstanding of how computers work, how Twitter works, or even what an account is.

    The ruling, as written, is another example of why Judges should never be allowed to decide technical cases. There might be excellent arguments as to why Trump should be allowed or prevented from choosing who’s Tweets are allowed to appear on his timeline. But making blatantly false and ignorant claims like this ruling did is embarrassing to anyone with even a basic understanding of computers.

    1. Your handling of punctuation, capitalization, and grammar indicates a lack of familiarity with standard English and indicates why computer technicians should leave non-technical writing, argument, and thinking to others.

  11. “Similarly, the fact that the Individual Plaintiffs retain some ability to “work around” the blocking does not cure the constitutional violation. Neither does the fact that the Individual Plaintiffs can post messages elsewhere…”

    That logic basically eliminates all “assault weapons” bans, waiting periods, permissible handgun rosters, “high capacity” magazine bans, and California’s ammo laws.

  12. Still not convinced the account is official government speech rather than Trump’s private speech which he is illegally using government resources to assist in. For instance, if the president gave a campaign rally (explicitly calling for his election, donations etc..) and had whitehouse staff write the speech for that rally it would still be private speech and the appropriate remedy would be to enjoin (or otherwise remedy) the use of government employees in its construction.

    I think it would have served Trump right if the court had just accepted their representation to the court and entered an injunction barring white house staff from assisting with the account (that’s a much more substantial penalty than not getting to block people).

  13. If anyone has actually scrolled through the responses to any Trump tweet as President, about 90% of them are negative. I highly doubt, as the Court’s opinion suggests, that he uses Twitter to gauge the public’s reaction to an opinion policy suggestion. It’s more like he gauges the media’s response to his tweets.

    I’m sure plenty of MAGA folks follow him, but either they avoid commenting because they get piled onto, or like me, not log into twitter to read the tweets.

  14. I am far from Donald Trump’s best friend, but I am not persuaded by the 2nd Circuit’s reasoning. It seems to me that a President is entitled to have a private twitter account without its being considered a government account.

    If anything, the Trump Presidency highlights the need to carefully distinguish between Mr. Trump’s private business and state action. Just as he is not the state, so the state isn’t him.

  15. It will be interesting to see in about a little under six years when the next president will more likely be a democrat if this rule still holds.

    1. You figure America still has enough vestigial bigots and half-educated, superstitious, backwater rubes to position Pres. Trump for another three-cushion bank shot at the Electoral College? Our electorate is improving daily in ways that disadvantage Republicans, and four years of that improvement will create a tougher climb for Pres. Trump.

      1. At some point, it won’t. But given that the Republican base keeps America running, you won’t like what it looks like when it’s all homosexual men, single women, and Hispanics in charge.

        1. What about gay women? Why do you always forget to mention gay women? Don’t they count in your list of horribles? (And if not, why not?)

          1. Because I have low expectations for women in terms of keeping society running. That’s traditionally been the job of men, and homosexual men are more like women in that respect. They won’t be growing our food, fighting our wars, building our bridges, or running our civic associations. They’ll be eating plant-based protein “burgers” in between orgies.

      2. “vestigial bigots”? You mean like the people who define “diversity” by skin color? No, those are the people who keep teh Democrat Party “running”.

        “half-educated, superstitious, backwater rubes”? You mean the people who believe that sex is defined by your feelings? Nope, those are Democrats, too.

    2. Yeah, but that’s okay. Trump is different. He’s not a legitimate President, because Hillary got 4 million more votes, and it was her turn. The courts are still #withher.

  16. 1: The President does not have to listen to you
    2: The President does not have to force other people to listen to you
    3: If the President holds an event where he is speaking to the public, he does not have to share the microphone with you

    If you wish to “participate in the public discussion” around Trump’s tweets, you can read his tweet while not logged in to Twitter, find a comment on Trump’s tweet by someone who hasn’t blocked you, log in to Twitter, and respond to that tweet.

    This ruling is utter trash, and you are showing your TDS by defending it.

    However, if the ruling is legit, then Twitter is violating my First Amendment rights when they ban my account, and take away my ability to “participate in the public discussion around Trump’s tweets.” So either Trump must be banned from Twitter, or Twitter can not ban any American. As a private entity, they can chose which course they wish. But if Trump can’t block people from following his tweets, then he can not subcontract that job out to a private company.

    Pick one

    1. This ruling is utter trash, and you are showing your TDS by defending it.

      Hah, Prof. Volokh is totally irrationally anti-Trump, that’s the ticket!

      1. I wouldn’t say Professor Volokh is suffering from TDS like Somin and Kerr are, but he also sees the judiciary through rose-colored glasses, which makes him unable to call out the manifest bad faith from the leftist “judges” who sit on the courts.

  17. Even if you accept that the account is some form of public forum, the court’s opinion breaks down at “replying, retweeting, and liking are all expressive conduct”. The implication of this ruling, if it is allowed to stand, is that future public officials will simply avoid all these kinds of communications. And while you might think it a good think to get Trump off Twitter (and so would I), it will inhibit many other politicians of both stripes AND lots of theoretically apolitical government bureaucrats. That will result in less communication from our own government – and I don’t see that as a net social positive.

    Note particularly that the logic of this case is not limited to the President. It will apply to everyone subject to the First Amendment. It will, for example, subject Prof Mann to First Amendment challenges for his blocks of climate change skeptics on his own Twitter account.

  18. Professor Volokh,

    Under this decision, why would a public university professor have a right to censor or remove comments made on a blog that mostly discusses subjects related to the professor’s work?

    Wouldn’t this decision apply equally to you, a public university professor, and hence to the Volokh Conspiracy blog (or at least to your posts and those of other public university professors in it)?

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