Case Summary and Outcome

A U.S. appeals court affirmed a lower court ruling that President Donald J. Trump engaged in unconstitutional viewpoint discrimination after he blocked users from his Twitter account for posting comments he disliked. The Court found there was “overwhelming evidence” that the account was used for official purposes and that the blocking was a restriction by the government, rejecting the President’s claim that his Twitter account was personal. The Court considered Twitter’s interactive functions such as replying, retweeting, and liking to be forms of expressive conduct allowing individuals to communicate not only with the President but with thousands of others. The Court further established that the Twitter account constituted a public forum on the grounds that it was controlled by the government, and Twitter’s interactive features made it “accessible to the public without limitation.” The Court rejected the government’s argument that the activity on the account was government speech, holding that Trump’s individual tweets were, but the messages posted by users were private speech. Therefore, the Court concluded that President Trump violated the First Amendment when he blocked the Plaintiffs for posting messages critical of him and his policies.

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Facts

The Plaintiffs sued President Donald Trump for violating their First Amendment rights after he blocked them from accessing his Twitter account on the ground that they posted critical comments he “disliked.”

The Plaintiffs (“Individual Plaintiffs”) included Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp and Nicholas Pappas. Knight First Amendment Institute at Columbia was not blocked but joined the case claiming a right to hear the opinions of the blocked Individual Plaintiffs.

The Defendants included Donald J. Trump, President of the United States, and Daniel Scavino, the White House Director of Social Media and Assistant to the President, and Sarah Huckabee Sanders, former White House Press Secretary.

Trump established his Twitter account (the Account) in 2009 when we was a private citizen but it is currently registered to him in his official capacity as the “45^th President of the United States.” At the time the action was brought, the Account had more than 50 million followers, generating thousands of replies to Trump’s tweets, and hundreds of thousands of follow-on messages in the comment threads. Both parties agreed that is “used as a channel for communicating and interacting with the public about his administration.” [p. 7]

The Individual Plaintiffs were blocked from the Account in May and June of 2017 after posting messages critical of the President and his policies. Blocked accounts are “unable to view the President’s tweets, to directly reply to these tweets, or to use the @realDonaldTrump webpage to view the comment threads associated with the President’s tweets,” which effectively prevented them from following and engaging with the comment threads. [p. 10] With the exception of blocking the Plaintiffs, the President had not otherwise attempted to restrict speech on the Account.

On May 23, 2018, the United States District Court for the Southern District of New York “found that the ‘interactive space’ in the account is a public forum and that the exclusion from that space was unconstitutional viewpoint discrimination.”

After the District Court Ruling, the Defendants unblocked the Individual Plaintiffs’ accounts, but the “voluntary discontinuance of an alleged illegal activity” did not nullify the claim. [p. 13] The Defendants appealed.

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Decision Overview

Judge Barrington Parker delivered the decision of the three-judge panel.

The primary issue before the Court was whether the President acted in a governmental capacity or as a private citizen when he blocked the Individual Plaintiffs. [p. 15]

The Court began by explaining that Trump had been actively using his Twitter account to interact with the public and conduct official business on an unprecedented level. Based on existing case law, social media platforms are extended the same First Amendment protections as traditional forms of media. [p. 22, see Packingham v. North Carolina] For the Court it was clear that the First Amendment did not allow public figures to exclude selected individuals from public platforms due to their expressed opinions, no matter how critical.

The government presented a range of arguments claiming the blocking was private conduct on a personal account and that the President’s tweets allowed him to participate in a forum rather than creating a public forum for other individual’s private speech. Therefore, the Court had to determine whether:

• the President acted in his private or public capacity when initiating the blocking;
• the blocking banned or burdened the Plaintiffs’ speech on the Account;
• the Twitter Account constituted a public forum;
• the President engaged in view point discrimination when blocking the plaintiffs; and whether;
• the Account could be considered government speech.

The Court rejected the President’s arguments that the Account was private or personal based on  “overwhelming evidence” that the Account is used for official purposes and that there is “pervasive government involvement with, and control over” it. [p. 17] The Court distinguished between how the Account is being used now, while the President is in office, and how it was or will be used again when he is a private citizen. The President himself conceded that he uses it to “announce, describe, and defend his policies” and “to promote his Administration’s Legislative agenda,” among others.  Further, the National Archives has established that the President’s tweets are official records.

In order to assess whether the blocking banned or burdened the Plaintiffs’ speech, the Court provided a detailed explanation of how Twitter’s interactive functions work. The Court found replying, retweeting, and liking to be forms of expressive conduct allowing individuals to communicate with the President and others, which were restricted by the blocking.

The Court also rejected the government’s argument that the blocking only prevented the Plaintiffs from replying to Trump’s tweets, as “not well-grounded in the facts.” [p. 24] The evidence established that the interactive functions enabled “public interaction” among hundreds of thousands of people posting on the comment threads. While “workarounds” to participate in the comment threads do exist, they were determined to be quite burdensome.

The Court then turned to whether the Twitter account constituted a public forum. To implicate forum analysis, the forum must first be subject to government ownership and control. The Court found this forum to meet the requirements because of the amount of control the President and Scavino had over the Twitter account. Moreover, according to Supreme Court precedent in Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995), a public forum can be an online “metaphysical” forum, rather than only a “spacial or geographic” forum. [p. 22] Applying those same standards, recent case law such as  Davison v. Randall also found that a public official’s Facebook page constituted a public forum and that the official acted illegally when she deleted a user post critical of her.  That is not to say that public officials cannot have private social media accounts, but the nature of the account must be derived from how the account is described and utilized. The Court only considered accounts clearly used for official purposes and did not consider whether the blocking of followers by a public official on a personal account would violate the Constitution. The Court held that the President’s Account constituted a public forum on the grounds that it was used for government outreach and Twitter’s interactive features made it “accessible to the public without limitation.” [p. 23]

Under the First Amendment, the government “may not exclude speech or speakers from the [public] forum on the basis of viewpoint.” The Court further referred to Hartman v. Moore, 547 U.S. 250, 256 (2006) to affirm that “the First Amendment prohibits government officials from subjecting an individual to retaliatory actions…for speaking out.” [p. 16] As it was established that President Trump blocked the Plaintiffs due to their critical comments, the Court held that he violated the First Amendment.

The Court finally had to determine whether an account controlled by the government constituted government speech, which would exempt it from the First Amendment. The Court found that while tweets posted by the President are government speech, the replies, retweets and likes by users at the heart of the case, are private speech. Therefore they are protected from government restrictions under the First Amendment.

The Court concluded with a quote from the Supreme Court in Matal v. Tam warning that the government speech doctrine is “susceptible to dangerous misuse,” and it reminded “the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.” [p. 29]

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