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Free Minds & Free Markets

Is It Really Illegal for Trump to Block People on Twitter Now?

Federal judge rules that the First Amendment prohibits the president from blocking followers based on their political views.

Julien Viry/Dreamstime.comJulien Viry/Dreamstime.comThe First Amendment prohibits President Trump from using his personal Twitter account to block critics, a federal judge in Manhattan ruled today.

U.S. District Judge Naomi Reice Buchwald, a Clinton appointee, said that Trump's occasional use of Twitter's blocking feature violates his critics' rights to free speech. "The blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment," Buchwald wrote.

It's a somewhat bizarre decision: The plaintiffs, represented by Columbia University's Knight First Amendment Institute, are complaining about being blocked from following and interacting with Trump's personal @realDonaldTrump account. They did not allege that the president—or anyone else in his administration—has prevented them from following actual official U.S. government accounts such as @POTUS, @PressSec, or @WhiteHouse.

It seems clear that @realDonaldTrump is a primarily a personal account. He created it eight years before taking office. He now uses it for non-governmental campaign purposes, such as urging people to vote for certain state politicians. He also uses it to complain about witch hunts, John Kerry, fake news, and of course the White House Correspondents' Dinner—not one of which is an official position of the U.S. government.

But to rule in favor of the plaintiffs, Buchwald had to find a way to declare @realDonaldTrump to be an official government account. Her logic was this: "Because the President and [White House Director of Social Media Dan Scavino] use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature...While we must recognize, and are sensitive to, the President's personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him."

The judge's logic turns the traditional way of viewing the First Amendment on its head: Your right to free speech doesn't extend to a right to make someone else, even a politician you have good reason to loathe, listen to you. The Supreme Court expanded on this in a 1984 case, ruling that a "person's right to speak is not infringed when government simply ignores that person while listening to others."

In other words, being ignored may hurt your feelings or make you feel sad, but it does not necessarily rise to the level of a violation of the U.S. Constitution.

If a senator happened to be in a public park and chose not to engage with protesters, or ducked some overly enthusiastic supporters, that would be perfectly consistent with the First Amendment. Any decision not to engage may naturally disappoint someone—and perhaps that senator will pay some political price at the next election.

But what does not infringe upon a voter's free speech rights in a public park does not, or at least should not, on Twitter either. Both are examples of exercising the equally important right to associate, or not to associate, with other individuals or groups.

Another argument against the plaintiffs, which the U.S. Justice Department will surely make on appeal, is that it's trivial to see @realDonaldTrump's tweets even if you're blocked. Simply log out of Twitter. Or use your web browser's incognito mode. This won't allow plaintiffs to participate in @realDonaldTrump's discussion threads, but it will trivially allow them to read what the president is tweeting from his personal account.

It's true that in some cases the government can use private property to establish a limited public forum that would be regulated by the First Amendment. If a town government rents a meeting room from a nearby hotel, and lets the public speak during a comment period (as my local town council does), it likely could not impose viewpoint-based restrictions on the public. But a member of the town council, who rents the same room the next day for his own private purposes, has the right to arbitrarily exclude any member of the public for any reason. That's a lot closer to what Trump is doing on Twitter.

If Buchwald's decision is upheld on appeal, it will impact Democratic as well as Republican politicians. Twitter-blocking apparently has become a bipartisan pastime. A ProPublica article last year reported that people across the country "have been cut off by elected officials at all levels of government after voicing dissent on social media." Atlanta mayor Kasim Reed, a Democrat who left office earlier this year, blocked not only critics but journalists too; a local newspaper kept a running total. And what about Ivanka?

For now, at least, Buchwald declined to issue an injunction that would attempt to compel Trump to unblock the plaintiffs immediately. (Using Twitter's mute feature apparently remains an option for the president.)

In her opinion today, she wrote: "Though we conclude that injunctive relief may be awarded in this case...we decline to do so at this time because declaratory relief is likely to achieve the same purpose…Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."

There's been no response yet from @realDonaldTrump.

Photo Credit: Julien Viry/Dreamstime.com

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  • Juice||

    Are judges getting stupider over time?

  • BestUsedCarSales||

    They certainly are getting New Yorkier.

  • damikesc||

    "Why have people lost respect for the judiciary?"

  • The gouch||

    Because they're bathhouse barry appointees.

  • Quixote||

    Many of us have gained respect, especially for the 19 state and federal appellate judges who have, over and over again through nine years of litigation, upheld the decision of a New York criminal court to jail the author of an inappropriate series of email "parodies" on the grounds that "neither truth nor good faith is a defense"—a decision that clearly helped lay the grounds for the appointment of our great national leader. To be sure, one so-called judge published a "First Amendment dissent," which has fortunately been ignored by the legal community at large. See the documentation of America's leading criminal "satire" case at:

    https://raphaelgolbtrial.wordpress.com/

  • Diane Reynolds (Paul.)||

    Is this a comment about Jews?

  • BestUsedCarSales||

    You should be reading all of my posts as comments on jews. Specifically the Greek Diaspora.

  • Teddy Pump||

    Jewish judges for the most part are responsible for some of the worst legal decisions in the history of this nation & they have profoundly CRUSHED Natural & Constitutional Rights!

  • Libertymike||

    Oh, you mean, like, Oliver Wendell Holmes, Jr.? Or John Roberts?

  • BestUsedCarSales||

    I'm uncomfortable that my joke was followed by what seems to be actual antisemitism.

  • ||

    Judaism is a belief system, a philosophy, as is law Sunshine. It can only be anti-semitic in that the Jews gave their heritage the same name as their religious belief.
    It's like if Teddy Pump had said socialists have historically been terrible with comprehension of the first amendment, or historically, conservatives have been terrible at arguing their points for Roe v. Wade.

  • Cynical Asshole||

    Yes, along with everyone else.

  • Flinch||

    Yes Juice, they are getting dumber - when somebody can emerge from law school and only be semi-literate when it comes to the constitution I am always amazed. Following this logic of third party individuals being permitted to force themselves into somebody elses publication [bumper sticker though twitter may be], then it also follows that I should be allowed to inject my opinion into the courts decision after the fact. A decision is just a publication after all, right? Did the judge think of that? If he did, he's a dyed in the wool anarchist in need of removal.

  • ||

    /looks down on clip board.

    Yes. Yes they are.

    Especially since Trump was elected.

  • Hackmaschine Mutter||

    "Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is"

    Wow.

  • damikesc||

    No joke. Trump should just say that he is in DC and outside her jurisdiction...though i am a bit shocked she didnt issue a national injunction against him.

  • Diane Reynolds (Paul.)||

    The First Amendment prohibits President Trump from using his personal Twitter account to block critics, a federal judge in Manhattan ruled today.

    So it's ONLY illegal if the President does it. This is some weird through-the-looking-glass kind of shit here.

  • Joe_JP||

    No. It also prohibits various other people from doing it too but the lawsuit wasn't brought against them.

  • TrickyVic (old school)||

    I think some of us are not certain the judge understands that.

    The judge did not call out public officials regarding the 1A issue. Would that be the reason for it? Public officials are not allowed therefore Trump is not allowed.

  • JoeB||

    No, it's only illegal if TRUMP does it. Get with the program.

  • Just Say'n||

    It is going to be hilarious when Milo sues Twitter based upon this precedent if it's upheld. If a politician banning people on Twitter is an affront to the First Amendment then surely restricting people from interacting with their elected representatives on that platform would be a natural extension of that principle.

    When you #resist so hard that you help Milo

  • Illocust||

    I really hope he does. Find the judge that hate the judge who made the ruling the most, and bring the suit in their court. Just so they can stick it to the other guy for being a moron.

  • spec24||

    Excellent.

  • Napoleon Bonaparte||

    Won't work. Any conservative that tries this will be exempted from protection due to "hate speech", which of course will be an entirely different thing.

  • ||

    But then they'll be forced to attempt to define it, and then you will be forced to hold everyone to that standard.

  • Mickey Rat||

    I was unaware that the president gives up his personal 1st Amendment rights upon taking office.

  • Joe_JP||

    He doesn't but if he acts in an official character he is restrained in ways a private person would not be.

  • Overt||

    There are two concepts being confused here.

    1) Blocking a user means that Trump doesn't see his post. I don't see a first amendment violation here, and this is pretty much the argument being made in the article above.

    2) When you tweet, you begin a public discussion where people react to and comment on your statement. By blocking the user, Trump prevents the user from being a part of the public conversation. Since Trump chooses to use his account for policy/public discussions then I can absolutely see this as viewpoint discrimination. It is exactly analogous to the example provided above, where a city council rents out a convention center to have a public forum- they cannot then

    If Trump weren't using Twitter and his local account as a place to broadcast his national policy and to engage in the public conversation on such matters, then he wouldn't have this problem. But oh well.

  • Sevo||

    "2) When you tweet, you begin a public discussion where people react to and comment on your statement. By blocking the user, Trump prevents the user from being a part of the public conversation. Since Trump chooses to use his account for policy/public discussions then I can absolutely see this as viewpoint discrimination. It is exactly analogous to the example provided above, where a city council rents out a convention center to have a public forum- they cannot then..."

    Is he also forbidden from tossing mail from a known source in the can, or must he open it and read it?
    I mean he uses the written word to discuss his policies.

  • Mickey Rat||

    It is not a public conversation, it is a private conversation taking place in a semi-open forum. It is like saying you have a right to eavesdrop on the president's conversation in a restaurant.

  • wearingit||

    Holy crap- someone on Reason using actual reason.

  • SIV||

    It's like if FDR didn't give air time for the Old Right to rebut him at the end of his Fireside chats,

  • jimolivi@icloud.com||

    I agree. Because Trump uses this account for policy announcements, the last part of the first amendment applies.

    Congress shall make no law ... or prohibiting the free exercise thereof ... or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

  • PaulTheBeav||

    Another ruling from another #Resistance judge.

  • HGW xx/7||

    All the elites know the ULTIMATE place to social signal is the courtroom.

  • Flinch||

    I've had it with some of these loons in black. Congress can place judges in a "sensitive position" subject to DOT regs, and demand urinalysis when they twist off behind the looking glass. They do it to anyone working offshore [holding a marine license], even on a production platform, which goes exactly nowhere at zero knots year after year. If it's good enough for an OIM [equivalent to a captain] then its good enough for a goverment officer in charge of a courtroom and all that happens there.

  • John||

    If it is illegal for Trump, then it is illegal for any other public official to do so.

  • TrickyVic (old school)||

    Yep. If upheld, which I doubt, then you are likely to see the end of Twitter used by politicians. Which might not be a bad thing, even if for the wrong reason.

  • JWatts||

    And Facebook, and public internet forums, and any speaking event anywhere. Well Politician X spoke, so everyone else gets a turn,etc.

    The ruling is absurd.

  • Flinch||

    Worse... if activists want to crack government officials for using private communications, the whole Obama team from 08 forward maintained private accounts used for government businesses using an alias. At least Trump is providing sunshine, even if some of his tweets should have been musings over the dinner table outside of public consumption.

  • EscherEnigma||

    Eh...

    Mostly what it means is that public officials would have to do a better job of segregating their personal communications from their official communications.

    Trump's problem is that, despite what McCullagh says, Trump regularly ignores that line and speaks as the president on his personal twitter account.

    Sort of like how you boss can say "Hey Dave, you should vote for Tim. He's a good guy", but can't say "Hey Dave, as your boss, you should vote for Tim."

    Which is really the stupid thing. The end result of this (regardless of how the trial works out) is that Trump is going to enforce better twitter discipline for a while, making sure he's using the right account.

    Now, the real fun is the suit about whether or not Trump's "personal" twitter is covered under government record keeping acts.

  • Libertymike||

    Actually, I don't see why the Trumpkin snowflakes are whining.

    As the court noted, and as the Trump administration has acknowledged, the Twitter account has been used as a channel to communicate with the American people regarding Trump's policies, legislative proposals, and official government business.

    The Twitter account is a designated public forum which means viewpoint discrimination is verboten.

    To sum up a 75 page opinion, end of story.

  • BYODB||

    Can a designated public forum belong to a private entity?

  • Libertymike||

    Yes.

    The judge covers that issue in the opinion.

  • BYODB||

    So, the private entity that is a designated public forum would then presumably be held liable if, say, it banned a public figure from their platform for certain speech then yes? Odd, then, that this has never happened during the many instances of this occurring.

  • Libertymike||

    Hypothetical:

    Go back to the summer of 2016. Twitter bans candidate Donald Trump the day after the Republican conventioneers and delegates leave Cleveland.

    Trump, the Trump campaign, the GOP national committee, and a bunch of private individuals all sue Twitter claiming that their FA rights have been infringed by Twitter's banning of Trump.

    What result?

  • JesseAz||

    Twitter has never been considered a common carrier. So no result except people screaming and possibly a bill to make social media common carriers. Which would end their ability to demonetize, shadow ban, etc.

  • damikesc||

    Twitter bans conservatives fairly routinely.

  • JesseAz||

    Your summary is sophomoric. A president can still have a personal opinion on the functions of government or legislation that are not government records. They often talk policy without being in public forums, see private campaign events. Twitter is closer to a campaign event than official presidential memorandum, ie no required record keeping.

  • Mickey Rat||

    How is a personal account a "public" forum? The man is not the office. Trump is not Louis XIV, he is not the State.

  • Ship of Theseus||

    ^This, and it needs to be repeated on loop.

  • John||

    I am not whining. I don't think this matters much

  • Larvell Blanks||

    Assuming your conclusion is a fun way to argue.

  • BYODB||


    Now, the real fun is the suit about whether or not Trump's "personal" twitter is covered under government record keeping acts.


    I don't see why it would. After all, Hillary's email server was immune to FOIA. In fact, that was the express reason for having it.

  • Diane Reynolds (Paul.)||

    Mostly what it means is that public officials would have to do a better job of segregating their personal communications from their official communications.

    Trump's problem is that, despite what McCullagh says, Trump regularly ignores that line and speaks as the president on his personal twitter account.

    And as I said before when this was brought up, this is very likely an impeachable offense. It has dick to do with the first amendment.

  • JesseAz||

    Yes. Impeach the president for having opinions...

  • ||

    /sarc?

  • Larvell Blanks||

    I'm curious about this supposed distinction between "speaking" and "speaking as the president." I mean, he's always president. Is there a magic POTUS hat that he's supposed to put on and take off, depending on the circumstances? Kind of like the sergeant in Stripes taking off his hat when he invited Bill Murray to hit him? Or the pope speaking ex cathedra?

    The president's official powers are basically limited to (i) signing or vetoing legislation, (ii) commanding the military, (iii) making appointments, (iv) signing treaties, (v) running the executive branch, (vi) granting pardons, and a few other things. "Spouting his mouth off about issues of the day" is not a presidential power, and has no more effect than you or me or anyone else doing the same.

  • BestUsedCarSales||

    Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

    What a smug statement this is.

  • damikesc||

    Good to know that the right to petition now includes it must be in the manner the petitioner wants.

  • spec24||

    I want to have access to the phone he uses for government business so I can call him and air my grievances.

  • Jerryskids||

    he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him

    I don't see how it's possible to argue with that. But that's the problem with petitio principii statements, they're not actually arguments.

  • damikesc||

    I can.

    He didnt limit their rights.

    They can petition in many other ways. They can read his tweets. He just will not read theirs.

  • Mickey Rat||

    If a president is engaged by someone on the street, is he infringing on their rights if tells them to go pound sand?

  • Longtobefree||

    I suspect the Secret Service (in what way is it 'secret'?) will be the ones infringing on their ability to breathe.

  • Joe_JP||

    The right to petition in the First Amendment is phrased in absolute terms but the fact there are "many other" alternatives is compelling? Does this work for other 1A rights?

  • spec24||

    To me, this seems like giving citizens a right to have direct access to the president, which, as far as I know, has never been something. So why then limit it to just Twitter? Shouldn't we all then have access to his phone that we can call day or night? And just like Twitter, he need not answer every call that comes in. He could in fact block calls. Would anyone argue that the president MUST allow every moron with access to a phone access to the president's phone? I want to know the difference.

  • Libertymike||

    The court distinguished some of those situations from the Twitter setting in the opinion. Whether you buy the distinctions or not, is another matter.

  • damikesc||

    If you want to have a gathering and want to use my house and I tell you no, I am not violating your rights. You can have your gathering in many other areas. Because you think my house would be awesome to do it in is hardly a violation of anything.

  • Libertymike||

    Agreed. But that is not the issue here.

  • Get To Da Chippah||

    The right to petition in the First Amendment is phrased in absolute terms but the fact there are "many other" alternatives is compelling?

    Actually, it kind of is. My right to petition the government doesn't mean I have the right to dictate the form in which my petition will take. I'm pretty sure I can't use the First Amendment to demand an in-person meeting with Trump at my convenience.

  • Social Justice is neither||

    So do I get to march into the White House at any hour of the day and have the President be required to listen to whatever I'm thinking?

    Fact is they can still see what he's tweeting and they can still make responses to it and they still have channels to petition the government that are not arduous.

  • Fist of Etiquette||

    WRONG. The 2nd Amendment only covers muskets!

    Wait, which amendment are we talking about here?

  • Just Say'n||

    I'm sick and tired of coming here and finding that Fist always has the most witty and relevant take.

  • Fist of Etiquette||

    I like you better than I like libertymike.

  • BestUsedCarSales||

    I think we all do. No offense to Libertymike, all praise to Just Say'n.

  • Libertymike||

    He forgets that I jumped to the defense of his stinking Steelers a month or two ago on a thread in which John and somebody else was ragging on the black and gold.

  • Libertymike||

    The Caps shall overcome amendment!

  • Dillinger||

    Fighting Ciccarellis.

  • Pro Libertate||

    Will not.

  • MatBastardson||

    We're talking about the First Amendment, which only covers the hand-cranked printing press.

  • loveconstitution1789||

    Her logic was this: "Because the President and [White House Director of Social Media Dan Scavino] use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature...While we must recognize, and are sensitive to, the President's personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him."

    So The judiciary is going to make a federal law that bans Trump from exercising his first Amendment right to use a private Twitter account and ban people because some people are claiming that Trump is violating their first Amendment right to _________ what? 1A right to use twitter?

    These judges are treasonous pieces of shit and don't give a shit about the Constitution.

  • Teddy Pump||

    BINGO-BANGO-BONGO!!!!

  • Jerryskids||

    "Because the President and [White House Director of Social Media Dan Scavino] use the @realDonaldTrump account for governmental functions...

    No they don't. Some people - rightly - mocked Trump's recent tweet:

    "I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people within the Obama Administration!"

    because that's not how it works. Twitter carries zero weight as far as official pronunciamentos go - Trump's just talking shit on Twitter, he simply cannot speak ex cathedra from Twitter, there are procedures to be followed for officially carrying out a Presidential action and none of them involve Twitter. So, no, he's not using Twitter for "governmental functions". (Well, okay, talking shit is a governmental function, but it's not an official governmental function.)

  • Incomprehensible Bitching||

    I'll Twitt your Twatter!

  • Teddy Pump||

    That would be a Cunning Stunt!!!!

  • Sevo||

    "The First Amendment prohibits President Trump from using his personal Twitter account to block critics, a federal judge in Manhattan ruled today."

    Did The Onion take over or did I type in the wrong addy?

  • Longtobefree||

    Welcome to the revolution.

  • jonnysage||

    I'd like to see them enforce this. Are they going to order Twitter? Throw people in jail?

  • BestUsedCarSales||

    If he does get impeached, I'd take great joy in it being for something entirely unrelated to Russia or Mueller.

  • Dillinger||

    action resulting in less Twitter ist gut.

  • Deep Lurker||

    It seems to me that if there's a case here against Trump (or any other government official) blocking someone, it would fall under the "petition the government for redress of grievances" clause, rather than under "freedom of speech."

  • Dillinger||

    post-prior-restraints?

  • Empress Trudy||

    Of course it's not illegal. What next? Trump has to stand there as people throw garbage at him?

  • Joe_JP||

    "In other words, being ignored may hurt your feelings or make you feel sad, but it does not necessarily rise to the level of a violation of the U.S. Constitution."

    But, being muted isn't the issue -- it is being blocked. Only allowing supporters at a public park is dubious. And, this is not a single campaign event or something. It is every statement, including some that announces policy.

    It being a long held private account is not compelling given the argument that is NOW being used in a public way that is subject to constitutional limits. The relatively trivial effects is granted but Reason saying the limit on 1A rights is small, so who cares, is a tad surprising. The right to petition is framed absolutely.

    The broad policy of public officials blocking people is fairly troubling; at least, you'd think it would be to Reason. The opinion might not hold, but it's a tricky issue.

  • Violent Sociopath||

    It's a tricky issue only if you're a simpleton or a federal judge.

    Someone's Twitter feed is not a public forum. It's in no way analogous to a public park or streetcorner (a traditional public forum); to a university meeting-hall or a city-owned theater (a designated public forum); or even to a jail or military base (a closed public forum). A's right to view and respond to B's tweets has always and forever been wholly at the discretion of B and Twitter. The fact that B is an elected official does not alter this fundamental reality.

    Since Twitter is not a public forum, blocking people does not implicate the First Amendment at all. The end.

  • BYODB||

    This is my understanding, unless we want to start calling Twitter the property of the U.S. Government.

    Or are we saying that, for example, the Washington Post editing their comments is illegal since it's blocking people's 1st amendment rights since the Washington Post releases official government statements?

    It's an anti-Trump judge doing what anti-Trump judges do: torture the law to spite Trump.

    Not all of them, and not every time, but this seems to be one such example.

  • Libertymike||

    Not for a second do I doubt that there is some anti-Trump animus at work here.

    If the same judge ruled the other way for Obama, I would be excoriating her.

  • BYODB||

    Agreed. I'm not saying that it's necessarily the only reason, and I'm not one of the people that thinks the judiciary are all out to get Trump or anything like that. But, this ruling simply doesn't make sense as Twitter is itself a private company and could theoretically ban Trump tomorrow with no repercussions.

    Did he not agree to the TOS, or are they now changing the deal? I suppose we should pray they don't alter it further?

  • HGW xx/7||

    The right to petition is framed absolutely.

    Here, here! I'm with there! The same logic obviously would then apply to 2A, as well. Well argued!

  • Cynical Asshole||

    Another argument against the plaintiffs, which the U.S. Justice Department will surely make on appeal, is that it's trivial to see @realDonaldTrump's tweets even if you're blocked. Simply log out of Twitter. Or use your web browser's incognito mode. This won't allow plaintiffs to participate in @realDonaldTrump's discussion threads, but it will trivially allow them to read what the president is tweeting from his personal account.

    Being blocked doesn't mean you can't still read the president's royal proclamations, it just means you can't call him a shithead and have him see it.

  • JoeB||

    If Twitter is a public park, then Twitter cannot enforce it's own "private forum" rules. They can't have it both ways.

  • Rockabilly||

    Fucking twitter fuck you twitter and the fucking Facebook too.

  • BYODB||

    Cool, so Twitter is now a part of the United States Federal Government. I'm sure Trump won't do anything drastic to it now!


    /sarc

  • MarcusMaximus||

    First, the assertion that Trump only ever uses this account for personal statements is false. He's made numerous announcements of official policy using this account.

    Second, the comparison to ignoring protesters in a park doesn't follow. By blocking these people, he isn't just personally ignoring their comments(he could do that by, you know, just not reading them), he's actively blocking them from participating in a public discussion in response to his tweets. It's not just him that can't see their replies, nobody can.

  • Libertymike||

    The judge got it right.

    It isn't even close.

    The Twitter account is a designated public forum in which the President is forbidden to engage in viewpoint discrimination.

    You are right in hosing the public park analogy as those who have so analogized have failed to accurately articulate the analogical target and matching domains.

    The issue is viewpoint discrimination. Can the state engage in viewpoint discrimination by, for example only permitting BLM protests at a park while prohibiting protests by Aryan Resistance protests? Of course not.

    The park is a public forum. The Orange One's Twitter account is a public forum. He has no right to block others.

  • damikesc||

    Got to disagree. You have no right to comment on anybody's Twitter, full stop.

  • Libertymike||

    You are operating under the assumption that his Twitter account is somehow completely private. He uses it for government purposes. He admits that and so does Daniel Scavino, the WH's Social Media Director.

  • BYODB||

    He does, but that doesn't automatically make it a public forum since there are two bits of important information:

    You can still view this information on Twitter even after being banned, regardless of being banned. You simply can not reply via Twitter directly to the President of the United States personal Twitter profile.

    This Twitter profile is a profile on a 3rd party website, and his account is a private account. The information released on his personal profile may be public information, but notably the same public information is also released through public channels. Does the government also own the radio stations and newspapers that verbatim reprint official U.S. government press releases? Not at all.

    I get the argument you're making, and maybe if this wasn't Twitter I would agree, but in this case I can't agree to the notion that a private companies platform can be considered a U.S. Government outlet. If this was the sole source of government related information, or if a ban completely removed your ability to see such information, it would be a different story for me.

  • Libertymike||

    BYODB, any skilled legal writer could have ruled the other way and do so citing only the cases the court did.

    Of course, the government doesn't own privately held radio stations and networks or newspapers.

    But, if Trump owned a radio network, with 401 affiliates nationwide, and routinely used the network for promoting presidential business and touting his legislative proposals and he periodically hosted 3-4 hour talk shows but would only allow those callers who would not criticize him, that would be a different story, imo.

  • JesseAz||

    So when Obama went on television and only read letters from constituents that only agreed with his policies it was illegal. Good to know.

  • Diane Reynolds (Paul.)||

    So impeach him for it. Impeachable offense.

  • Get To Da Chippah||

    Trump uses Air Force One for government purposes. How much of a right does that fact grant me access to the planes that operate under that very official designation?

  • Libertymike||

    If you are a porn star or a beauty contestant or Sheldon Adelson or Sean Hannity or the managing director of UAE Sovereign Wealth Fund or Scott Pruitt, some pretty good access.

  • Get To Da Chippah||

    None of those people have a right to access Air Force One simply because the President uses it for government purposes.

  • JesseAz||

    You are taking the assumption that any comment trump makes on policy or the government is an official action. It's a stupid premise to start from.

  • JoeB||

    Fine. As I stated earlier, no more speech rules on Twitter. It's a public forum now.

  • Diane Reynolds (Paul.)||

    Agreed. Nationalize it. No more bans, no more shadow bans, no more speech codes. It's done. Fire the executives, everyone who works from them gets a GS salary. Boom, public utility.

  • Violent Sociopath||

    The Twitter account is a designated public forum in which the President is forbidden to engage in viewpoint discrimination.

    Examples of designated public forums are things like university meeting halls or city-owned theaters. Donald Trump's Twitter feed is in no way analogous to those things.

    The judge is wrong, and you're a fool if you think her opinion is persuasive.

  • Get To Da Chippah||

    The Twitter account is a designated public forum

    Designated by whom? When did this designation take place?

  • Mickey Rat||

    The man is not the office. The occupant of the White House is not the State. To say that whatever he does is the staye acting is a pernicious establishment of an imperial executive.

  • Jerryskids||

    He's made numerous announcements of official policy using this account.

    But "announcing an official policy" on Twitter is not an actual governmental function. Trump makes lots of pronouncements, but we aren't yet at the point where the Emperor decrees his wishes and, hey, presto, Thy Will be done. There are actually technical legal procedures for Trump's words to become the law of the land, documents to be written and signed, forms to be filed, etc., some of them requiring official notice-and-comment and Twitter most definitely does not count as notice and comment under the APA.

    If Trump says he's going to do thus and so on Twitter, I'm pretty sure that's going to get covered by CNN, the NYT, NPR and about a thousand other news outlets, all of them hysterical that Trump said some shit, and everybody is thereby informed that Trump said some shit - but his Twitters carry absolutely no legal weight, they are meaningless as far as government policy is concerned.

  • JesseAz||

    Talking about a policy isn't official policy. When Obama campaigned for ACA he wasn't taking official action. When he signed the legislation it was an official action. We've never held up twitter comments as official records.

  • Sufi||

    "The judge's logic turns the traditional way of viewing the First Amendment on its head: Your right to free speech doesn't extend to a right to make someone else, even a politician you have good reason to loathe, listen to you"

    No, that's not the point. It's not that the person disagreeing with Donald has a right to force Trump to listen but has a right to respond to other Americans following his tweets. As the judge stated, Mr Trump can always set his twitter account so he will not see replies from any person he doesn't want to see.

  • XM||

    I don't think that's meaningful distinction.

    If I rented a bulletin board and the company enabled me to block postings on them, then that's my prerogative. The fact that the parties that I blocked can no longer respond to other posts on my bulletin board should be a moot point.

    You can log out of twitter, see the discussion, and invite Trump followers to your own discussion in your own twitter or wherever.

    You have no constitutional right to participate in a debate on someone else's platform.

  • Libertymike||

    Its a public platform which thereby triggers the prohibition against viewpoint discrimination.

  • XM||

    The company that allows public statements to be made on their platform is private. Unless their TOS states that you can't block users based on political ideology, Trump should have every right to block whoever he wants, just as I have every right not to invite anyone to my birthday party.

    The fact that the government manages Trump's Twitter feed (I assume mostly for security measures) shouldn't matter. If I worked for the government and my supervisor won't discuss politics with me but does so with others who agree with his position - my 1A rights are not violated.

    Twitter is essentially an online bulletin board. I could post "I hate NY style Pizza" and maybe 3 people would respond to it. Maybe a thousand people will. But it's not an invitation to a debate by default. I can end things by simply deleting that post. Or I can just block people who aren't being constructive. The discussion belongs to me.

  • Sevo||

    Libertymike|5.23.18 @ 6:47PM|#
    "Its a public platform which thereby triggers the prohibition against viewpoint discrimination."

    Is he also required to read every bit of mail, even that coming from known TDS-victims?
    The mail is a public platform.

  • damikesc||

    No, that's not the point. It's not that the person disagreeing with Donald has a right to force Trump to listen but has a right to respond to other Americans following his tweets.

    They are more than free to converse with anybody else on the internet. The NYT doesn't allow comments on numerous articles. Is that violating the 1st Amendment?

    This is a PRIVATE company's service. It's not a PUBLIC forum. And if these attention whores want attention, nobody is obligated to give it to them.

  • Diane Reynolds (Paul.)||

    They are more than free to converse with anybody else on the internet. The NYT doesn't allow comments on numerous articles. Is that violating the 1st Amendment?

    It is now.

  • Cynical Asshole||

    no government official is above the law and because all government officials are presumed to follow the law

    BWAAHAHAHAHAHAHAHAHA!!!!!!1111!!!!!!!1!!!

    *inhales sharply*

    BWAAHAHAHAHAHAHAHHAHAHAHAHAHA!!!!!!!!!

  • PapaGile||

    A simple solution if one doesn't want to read a person's replies or comments - "mute" them. Their tweets will become invisible to the "muter", but they can still favorite, reply, or retweet.

  • damikesc||

    So, it is illegal for the President to not let you use a private service to converse with friends on his Twitter feed?

    THIS is libertarianism today.

  • loveconstitution1789||

    To be fair, the people advocating what this judge peddles are not Libertarians.

    They don't give a shit about the Constitution.

  • BestUsedCarSales||

    Is it illegal for public officials to not have a twitter account at all?

  • Nardz||

    The ruling kinda suggests that, doesn't it?

  • Diane Reynolds (Paul.)||

    If Twitter had blocked the plaintiff in the suit because of abusive behavior, would that have been a first amendment violation? If not, why not?

  • MatBastardson||

    Now the New York Times can sue Donald Trump for not subscribing.

  • Diane Reynolds (Paul.)||

    Well, more like I can sue the NYT for blocking (my) comments on a story.

  • Longtobefree||

    Can I sue them because they expect me to pay for that rag?

  • GeoffB1972||

    Well, not any story. But if a public official writes an op-ed, that's definitely the opening of a public forum where you should be allowed to comment.

  • Gaear Grimsrud||

    "no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."
    Love it when some hack, political appointee, district court judge uses the royal "we" and presumes to represent the "judiciary" deciding what the law is. Fuck off Naomi.

  • sparkstable||

    So.... Obama stopped making illegal payments to ACA accounts after the judiciary said stop? Hillary handed over ALL of the demanded emails requested by a judge? The Fed Alphabet Soup has complied with every legal request for documents made by House committees?

    This lady followed the Constitution and the law upholding Donald Trump, the citizen's right to association?

    What a load of crap this lady is.

  • Mark22||

    She's 74 years old and has a long string of bad legal decisions to her credit (just look at her Wikipedia page).

  • TerdFergeson||

    So which social media platforms are public forums? Elliot Spitzer rejected me on Tinder. I'm pretty sure that's illegal now.

  • josh||

    I disagree and think the decision should be overturned. That said, if it causes the president to maintain a little sanity on Twitter for a while, then as bad decisions go, this was a good one.

  • Ken Shultz||

    So . . . you switch to another platform where messages expire after a while. Half the time, the press is just covering his tweets anyway. If he moves to snapchat, they'll cover that instead.

    Bad news for Twitter.

    Bad news for lazy journalists, too.

  • TerdFergeson||

    Serious question: Can a politician physical remove hecklers from a campaign rally/event?

  • Sevo||

    Probably depends on on the venue.
    For instance, the hag, in late visits to SF, managed to control attendance to the point of restricting it to NO (zero) press. And courtesy of Tony, we all know the hag never violated any laws.

  • Longtobefree||

    No it is not illegal.
    His tweets have no legal authority whatsoever.
    The actual government actions are taken in writing, through official channels.
    If Trump tweets tomorrow is 'national buy an AR15 day', it is not actually 'national buy an AR15 day'.
    Even one of his tweets said he would be using official channels later.
    Announcing a government policy on twitter does not create that government policy.
    For instance, if he tweets that a certain idiot judge who cannot think straight is fired, that certain idiot judge who cannot think straight will still get paid, and sit on the bench, and spout utter nonsense.
    Sad.

  • Rev. Arthur L. Kirkland||

    This author makes Michael Cohen -- pride of Cooley Law -- appear to be a legal genius. Did McCullagh spend a day in law school, or is his understanding of legal concepts innate as well as lame?

  • Sevo||

    "This author makes Michael Cohen -- pride of Cooley Law -- appear to be a legal genius."

    Your envy is noted. And laughed at.

  • Rev. Arthur L. Kirkland||

    Cooley Law grads can't get jobs as paralegals at strong firms, you bigoted rube.

  • Sevo||

    Rev. Arthur L. Kirkland|5.23.18 @ 9:54PM|#
    "Cooley Law grads can't get jobs as paralegals at strong firms, you bigoted rube."
    You are calling ME bigoted, you slimy piece of shit?

  • Violent Sociopath||

    Oh, look, the backwards, bigoted, poorly-socialized bottom-quintile grad from a third-tier-trash law school is here to try to condescend to his betters.

  • Kazinski||

    Where Trump went wrong is allowing government officials access to his account. If he limits use of @realdonaldtrump to himself and his campaign the facts change and he has no obligation to allow access to his account.

    Then he can give his official Whitehouse communication team access to the new account.

    This ruling would set the stage for claiming a Hatch act violation during his reelection campaign, unless he makes it explicitly his personal and campaign Twitter account.

  • TxJack 112||

    This ruling will be overturned because it is beyond stupid.

  • Kazinski||

    Where Trump went wrong is allowing government officials access to his account. If he limits use of @realdonaldtrump to himself and his campaign the facts change and he has no obligation to allow access to his account.

    Then he can give his official Whitehouse communication team access to the new account.

    This ruling would set the stage for claiming a Hatch act violation during his reelection campaign, unless he makes it explicitly his personal and campaign Twitter account.

  • Kazinski||

    Where Trump went wrong is allowing government officials access to his account. If he limits use of @realdonaldtrump to himself and his campaign the facts change and he has no obligation to allow access to his account.

    Then he can give his official Whitehouse communication team access to the new account.

    This ruling would set the stage for claiming a Hatch act violation during his reelection campaign, unless he makes it explicitly his personal and campaign Twitter account.

  • Sevo||

    How about the (printed) press? His policies are discussed there in quotes from him.
    Does he have to subscribe to all of them and read them all? Even the LttE in that left wing-rag Chron, where TDS is the chronic?
    Ya know, maybe his blocking people is the 'serious offense' that Tony's been whinging about lot, these many months.

  • josh||

    Reading some of the comments on my feed, some people were under the impression that the president was blocking people based on party affiliation (Democrats) and thus excluding a third of the country by default. Which really explains the judge's decision actually. It was a way of giving a voice to politically like minded individuals, even if you have to stretch the law to do it.

  • SusanM||

    Is it too late to go back to postcards?

  • josh||

    Postcards don't have spell check.

  • buybuydandavis||

    No one should be surprised at Leftist judicial authoritarianism

    The Living Constitution means Your Side Always Wins

  • TGoodchild||

    "Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.""

    Who is "we," your honor? How does one not become cynical when faced with such a poorly-reasoned ruling?

  • Rich||

    So, since the judge did not issue her ruling on Twitter, we must assume that her ruling can be ignored.

    Is that about right?

  • Sevo||

    Rich|5.24.18 @ 12:13AM|#
    "So, since the judge did not issue her ruling on Twitter, we must assume that her ruling can be ignored.
    Is that about right?"

    Pretty sure the judge has put herself in that or worse position.
    TDS is not limited to our resident imbeciles.

  • johnfrancis||

    I am still not confirmed about my views that is it right or wrong

  • Mark22||

    If a senator happened to be in a public park and chose not to engage with protesters, or ducked some overly enthusiastic supporters, that would be perfectly consistent with the First Amendment.

    That may be true for a Democratic senator. It's definitely not true for Donald Trump. The rules are different for him. TDS

  • Philo||

    Regarding the nature of Trump's twitter account: "The Department of Justice on Monday told a federal district court judge In Washington, D.C. that Donald Trump's tweets are "official statements of the President of the United States."' from 2017.

  • JuanQPublic||

    Very problematic.

    The Twitter account is a private account, and whether it's used for government business or not is secondary to it being his private account, used for years, also for campaigning and personal statements.

    Also, is blocking users on a privately controlled and owned infrastructure infringing on free speech in the first place? The 1st Amendment argument seems ill-fitting for this. Even if we concede that Trump's account is part of government function, it could be problematic to block users, but on 1st Amendment grounds seems like the wrong reasoning.

  • I am the 0.000000013%||

    So Trump spends .000001% of his billions (or our trillions) and hires a programmer that creates a Twitter client that simply layers a 'block user' feature on top of Twitter that only Trump knows about and uses...

    What does our judge do now?

  • Josh The Radio Dude||

    Yes, it is illegal. This has been case law for quite some time now. No government official, using their social media account for government work, can block or censor opposing views. That is a violation of the First Amendment rights of the person being blocked or censored, as it is a deliberate effort on the part of the government official to impede that person's communication with the government. It's a very clear line, one that is right in being drawn, and Trump has obviously stepped over it.

  • TrickyVic (old school)||

    Can you cite a case for review?

    I don't think I've seen any case law that says your 1A covers the right to be heard.

  • Violent Sociopath||

    This has been case law for quite some time now.

    The usual way this works is that you provide citations supporting the arguments you're making, champ.

  • TxJack 112||

    This is perhaps the stupidest anti Trump ruling to date. I love how all these judges are totally ignoring the actual law and making decisions based on their political opinion. President Trump will be remembered as the first US President ever held accountable for statements made as a candidate. Never before in US history have anything a candidate for President said been used as the basis for a legal decision when President. This is just another example of how "Trump Derangement syndrome" is ripping this country apart.

  • ||

    Trump has nothing to do with Twitter's policy of censoring. In an age where we are being monitored 24/7, someone is reading & screening our comments at the very minimum. Those that don't fit the narrative don't get through. Appearances are created as if though they did. The one thing that mediums like Twitter, YouTube, or Facebook don't want is an honest, objective discussion. They are privately owned & controlled, complete with a figurehead & a board of directors. Ownership dictates content. There may be government input as regards what gets posted as, it too, has a say as to what will fit the prescribed narrative. It stands to reason that there are millions of fine minds that can better solve & answer to the problems that exist. Their input is not wanted or desired by the deep state. They do not want to relinquish control & profit. The last thing they want is an informed populace.

  • mamabug||

    Guess I'm in the minority that thinks even if though the ruling was politically motivated and poorly reasoned, the underlying principal of the decision is correct.

    People are confusing Twitter the platform with a particular Twitter account. It is the latter which is the public forum not the former. To bring it into a real world analogy - if a local city councilperson rents space at a hotel convention center for a town hall to discuss their bat-shit crazy idea to place a head tax on local businesses, then that event is a public forum even if the convention center is not.

    The politician can set rules like whether comments from the audience will be allowed, how such comments must be given, how long each speaker gets, etc. but they can't cut someone off or prevent them from speaking based on their opposition to the bat-shit crazy plan and justify that exclusion by pointing to the hotel and saying 'but its a private venue.'

    I don't get how this is so difficult to understand. If a public official is allowing free discussion of one of their policies in a forum they initiated, they can't block people from participating in that discussion based on their viewpoint, politics, or past interactions that didn't result in a restraining order.

  • Violent Sociopath||

    The politician can set rules like whether comments from the audience will be allowed, how such comments must be given, how long each speaker gets, etc. but they can't cut someone off or prevent them from speaking based on their opposition to the bat-shit crazy plan and justify that exclusion by pointing to the hotel and saying 'but its a private venue.'

    No. False. Wrong. He can do exactly that. If he paid for the venue out of his own pocket, then it is his venue, and his rules. The private venue does not magically become a public forum simply because the speaker is a public official: in order for a venue to qualify as a public forum in which the First Amendment has some application, the venue itself must be open to the public in some meaningful sense.

    No one's Twitter feed has ever open to the public in a meaningful sense. Your "right" to see and comment upon someone else's tweets is entirely at the sufferance of (a) the tweeter, and (b) Twitter. There is no legal alchemy that transmutes this arrangement into a public forum.

    That people are convinced Twitter is a public forum is a staggering indictment of the state of critical thinking skills in this country.

  • Eman||

    #NotAllHashtags

  • Toast88||

    Many here are missing the point that these people are not being blocked from Twitter.

    They can still tweet at the president, mention the president and mock the president on the very forum that supposedly is infringing their 1A rights.

    He's just choosing to make it so he doesn't see them. If there's a protest across from the White House and Trump puts up a curtain on his window so he doesn't have to see it, is that an infringement of the protesters' rights? Literally the same exact thing.

  • MBmb||

    I think they're just looking to add to the impeachment counts, which they are preparing in case they win the elections.
    Nobody will read the impeachment act, so they can just sneak this in there somewhere, around page 1000 or so.

  • Flinch||

    Here we go again, with legislation from the bench. Whose account is it? Trumps. Whose server is it? Twitters. How is it that a user agreement between Trump and Twitter is adjustable by a third party [judge or whoever raised a complaint about blocking]? And since a blocking tool has been around for some time, an organic complaint should have emerged years ago; so this is just using Twitter to harass Trump at the end of the day, If this is allowed to stand, the next shoe to drop is the spam filter you use to keep noise out of your inbox is toast. If you've ever had to manually jettison 400+ garbage messages every day, you know where this is headed: social media will begin hosting offshore to get away from zombie moves like this court is making, just so they don't have to fork out millions for extra storage serving cretins that bought your email address in a bulk package for 2 cents a pop or less.
    Twitter policy prohibits hateful, targeting behavior and...I'm sure Trump does not want to read 'nazi' comments offered up by the same ignorant crowd that likely voted for a real socialist in the primaries: Bernie.
    Beyond all that... free speech does not mean anyone can be forced to listen: that's North Korean territory.

  • Variant||

    Yawn. Overturned in 5, 4, 3, 2....

  • ||

    If I were Trump, I'd accept the Judge's invitation to unblock, invite her to join him, and then block her.

  • E. Kline||

    What law school did this dumb twat attend?

  • LifeStrategies||

    This is the same leftist nonsense that enables government bigots to deny a cake baker's religious convictions and his 1st Amendment rights by trying to compel him to create a special cake to celebrate a gay marriage, despite him being able to prove he has never refused gay people's regular purchases previously.

    Note that the same (state? local?) government has declined to prosecute ANY cases where the shoe was on the other foot...

  • Deplorable Victor||

    "U.S. District Judge Naomi Reice Buchwald, a Clinton appointee, "

    A cunt appointed by a pervert, not a real judge, and not an American.

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