Access to Public Information, Defamation / Reputation
Aécio Neves da Cunha v. Twitter Brasil
On Appeal Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The U.S. District Court for the Southern District Court of New York found President Trump in violation of the First Amendment rights of the individual plaintiffs for blocking their accounts on Twitter, an online social media platform. The Court reasoned that the interactive space created through posting a “tweet” (the replies and responses and dialogue created online through that post) was a designated public forum and that by blocking individual users President Trump was impeding political speech which is highly protected under the First Amendment.
The government has filed notice to appeal the decision.
The plaintiffs were individuals Rebecca Buckwalter, Philip Cohen, Holley Figuerora, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas. The Knight First Amendment Institute (“Knight Institute”) also joined as a plaintiff. The individual plaintiffs sued because they were blocked from Donald Trump’s Twitter Account, namely @realDonaldTrump account (the “interactive space” where Twitter users may directly engage with the content of the President’s tweets) because of critical statements of the President and his policies in replies to his tweets on Twitter. The Knight Institute wasn’t blocked from the President’s account but was unable to read comments posted by followers who had been blocked. In addition to Trump, Sarah Huckabee Sanders, White House Press Secretary, and Daniel Scavino, White House Social Media Director and Assistant to the President were joined as defendants.
The Court issued an Order in the plaintiffs’ favor finding the President was in violation of the plaintiffs’ First Amendment rights. The defendants have indicated they intend to appeal the decision.
First, the Court considered whether the individual plaintiffs had standing to proceed. To establish standing, a plaintiff must show (1) an injury in fact, (2) causation, and (3) damages. The Court found the plaintiffs suffered an injury in fact, which was caused by being blocked by the President and that as a result of this they suffered intangible harm because they were unable to view his tweets or post direct replies. It also found that that the Knight Institute was independently able to satisfy the same elements of standing to qualify for “organizational standing”.
Regarding causation, the Court dismissed the claims against Sarah Huckabee Sanders and granted summary judgment in her favor because she did not have the ability to access Trump’s account. The Court said that the plaintiffs’ injuries were not attributable to her and they accordingly lacked standing to sue her. However, the Court denied summary judgment in Scavino’s favor on the claims against him because, although he did not actively participate in the blocking of the accounts, he had access to them and therefore the ability to block accounts in the future. The Court swiftly dispensed with causation regarding the President because he blocked the accounts in question, and had the ability to unblock the accounts.
Finally, the Court found that it could redress the complaint via potential injunctive or declaratory relief. However it did not consider arguments on potential injunctive relief, instead stating that “[a] declaratory judgment should be sufficient, as no
government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared”.
The Court then turned to the merits of the case, specifically whether the President’s Twitter account is considered a forum for purposes of the First Amendment and whether blocking the individual Twitter accounts violates freedom of speech. To make this determination, the Court first analyzed the type of speech the plaintiffs’ sought to engage in. The Court had no difficulty in finding that this was political speech and as such fell within the umbrella of protection under the First Amendment.
Next, the Court turned to the forum of the speech. The Court found the forum in this case to be narrow, encompassing only “the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the ‘interactive space’ associated with the content of the tweet by, for example, replying to, retweeting, or liking the tweet.”
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 Sacvino had over the Twitter account. This included posting tweets, replying to tweets, and blocking other Twitter users from the account. This control is governmental in nature and not personal because the account is held out as being registered to the President of the United States, and the tweets are official presidential records as actions which can only be undertaken by the President of the United States.
Defendants countered that the specific action of blocking the plaintiffs could not be considered state action because it was not undertaken under color of state law; that it was not an official state action but a capability available to every Twitter user. The Court rejected this argument, finding that determining a public forum exists generally ends the analysis of whether the government is taking state action in that forum, unless the party exercising control over the forum in question is a nongovernmental entity, which was not the case here. By way of analogy and to show how the state can control a public forum, the Court referred to the government’s power to regulate or control property rights even where the property is held by private bodies or individuals.
The Court also rejected the defendants’ argument that the Twitter account could not be a governmental forum as it was established in 2009, before the President’s inauguration. It stated that a forum can change from being a private forum to a governmental forum and had done so in other cases. The Court stated that the tweets and Twitter page comprised a government forum, as distinguished from the comment thread which was a public forum because the defendants could not block users from seeing replies to tweets and therefore did not exercise control over the thread, but rather the tweets themselves.
Next, the Court turned to the purpose, structure, and intended use of the forum; “the content of the tweets, the timeline comprised of the account’s tweets, and the interactive space of each tweet.” The Court found the content of the President’s tweets did not implicate forum analysis, and neither did the timeline as these involved purely government speech. However, as to the interactive space of each tweet, the Court found the forum analysis was properly applied as this was not government speech. The interactive space included the responses and replies to any tweet by the President and access to this forum was impeded through the President’s blocking of the accounts.
Finding the interactive space for the tweets was subject to a forum analysis, the Court then had to consider whether this forum was a traditional public forum, a nonpublic forum, or a designated public forum. The Court found the strongest support for a designated public forum (closed forum that the government has opened up to public discourse), as any member of the public could view and interact in this forum.
Since the Court found this was a designated forum, the next question was whether the government had engaged in viewpoint discrimination. The standard for viewpoint discrimination is whether it is, “narrowly drawn to achieve a compelling state interest.” The individuals were blocked as a direct result of critical statements of the President and his policies. The defendants argued that blocking the plaintiffs was the President’s First Amendment right. The Court disagreed, finding that although the President does not lose his First Amendment rights when he takes office, he is also free to disregard ideas and statements. Here, the Court made an important distinction between the muting feature on Twitter and the blocking feature. Muting allows an individual to un-follow comments by another (the user no longer sees the comments but they are able to post) while blocking precludes them from accessing any material on the user’s account. Therefore, the Court found the President’s act of blocking the individuals was unconstitutional because it interfered with political speech in a designated public forum and ordered declaratory relief.
In sum the Court concluded:
“Plaintiffs have established legal injuries that are traceable to the conduct of the President and Daniel Scavino and, despite defendants’ suggestions to the contrary, their injuries are redressable by a favorable judicial declaration…..Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That intertactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case expands expression. In the age of increasing technology there are more and more legal decisions dealing with online social media platforms, and this case sets precedent in finding that a government official’s interactive Twitter platform can be a public forum for purposes of the First Amendment.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.