Content Regulation / Censorship, Political Expression
Zhang v. Baidu.com, Inc.
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The United States Court of Appeals for the Second Circuit denied rehearing a 2019 ruling of the Appellate Court in Knight First Amendment Institute v. Donald J. Trump which confirmed that President Trump’s practice of blocking critics from his Twitter account violated the First Amendment. The Plaintiffs had sued President Donald Trump for blocking individual Plaintiffs from accessing @realDonaldTrump account on the ground of an unconstitutional restriction on their right to access statements reflective of Trump’s views and decisions in his official capacity as President. The Court found that the use of the account by Trump, and his communications staff, and its interactive features to function as an “official vehicle of governance”. Noting that the case was a “straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent”, the Court concluded that the use of twitter account by the President amounted to “state action” and the selective exclusion of critics on account of their displeasing comments (viewpoint discrimination) was an “egregious form of content discrimination”.
The Appellant, The Knight First Amendment Institute at Columbia University (‘Knight Institute’) is a section 501(c)(3) organization based in New York that works to defend and strengthen the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Plaintiffs included individuals from across the country who had expressed their opinions as replies to tweets posted by Donald Trump on the renowned micro-blogging website ‘Twitter’, critiquing the President and his policies.
The Defendant, Donald Trump, operated twitter handle @realDonaldTrump which was established in March 2009 and used by him to tweet about a variety of topics, including popular culture and politics. Since becoming the President, President Trump used the account as a channel for communicating and interacting with the public about his administration as well as, occasionally, to communicate about other issues not directly related to official government business. Since the inauguration of the President, the @realDonaldTrump account was also being operated with the assistance of Defendant Daniel Scavino, the White House Social Media Director and Assistant to the President.
In May and June 2017, the individual Plaintiffs had tweeted a message critical of the President in a reply to a tweet from @realDonaldTrump account. Each individual Plaintiff had his/her account blocked shortly thereafter. As a result of the President’s blocking of the Individual Plaintiffs from @realDonaldTrump, they were unable to view the President’s tweets, directly reply to these tweets or use the @realDonaldTrump webpage to view the comment threads associated with the President’s tweets while they were logged in to their verified accounts. In July 2017, the Knight Institute and the individual Plaintiffs filed a suit against aforementioned acts seeking declaratory relief and an injunction naming the President, Scavino, the then White House Press Secretary Sean Spicer (succeeded by Sarah Huckabee Sanders) and White House Communications Director Hope Hicks.
The District Court of New York granted a partial summary judgment in favour of the appellants in May 2018 against the defendants Trump and Scavino, dismissing the claims of the other two defendants for a lack of authority to operate @realDonaldTrump account. The court arrived at that holding by analyzing the account under the public-forum doctrine and determining that the blocking of the Plaintiffs was an impermissible restriction on access to a public forum. Accordingly, Judge Naomi Buchwald granted Plaintiffs’ cross-motion for summary judgment in part, declining however to issue an injunction.
Pursuant to the ruling of the District Court, the accounts of the individual Plaintiffs were unblocked. President Trump appealed against the judgment of the District Court, arguing primarily that an action to block individual Plaintiffs was exercised in his private and personal capacity. Rejecting the President’s claim on account of overwhelming evidence to the contrary, the Appellant Court concluded that the ‘interactive space’ in the account acted as a public forum and the exclusion from that space of the Plaintiffs was an unconstitutional viewpoint discrimination [p. 2].
Subsequent to the decision of the Appellate Court on July 9, 2019, a poll was requested by an active Judge to rehear the case en banc. By a majority of 7-2, the rehearing of the case was denied by the Court by a decision dated March 23, 2020.
Judge Barrington Parker delivered the statement concerning denial of a reconsideration of the decision of the Appellate Court. The principle issue before the Court was to determine whether the primary argument of the dissent to rehear the case on account of the ruling of the Appellate Court being erroneous was valid or not.
According to the Federal Role of Civil Procedure (R.35), a majority of the active circuit judges decide to reconsider a case en banc when a case concerns a matter of exceptional public importance or the panel’s decision appears to conflict with a prior decision of the court. An en banc hearing is ordered when two conditions are satisfied, (i) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions and (ii) the proceeding involves a question of exceptional importance [p. 19].
To recap, by a 3-0 majority, the U.S. Court of Appeals for Second Circuit had held that, first, the action of blocking the individual plaintiffs constituted ‘state action’ and secondly, the thread of replies of each tweet of the President (‘interactive spaces’ of the account) was a public forum.
Judge Michael H. Park (joined by Judge Sullivan) wrote the dissent. Refuting the judgment of the Appellate Court, the claim of the dissent was based on the ground that the use of the handle @realDonaldTrump was not equivalent of a state action as the account did not constitute a public forum, having been a personal account. It was argued by the dissent that while blocking accounts on Twitter, the President did not exercise any ‘right or privilege created by the State’ [p. 6]. Consequently, the ambit of First Amendment was restrictive and did not guarantee a right to post on social media accounts of other people, including public officials.
It was also claimed by the dissent that the decision of the Appellate Court was contrary to settled principles of state action and public forum doctrines. By extending the scope of the First Amendment, the decision encompassed personal social media activity of government officials and was therefore worthy of a review by the Court. The arguments of the dissent could be summarized as follows:
Rebutting the claims of the dissent that the decision had substantial negative implications resulting in public officials’ diminished ability to defend themselves from hate and harassment online, Judge Parker noted that the case was a ‘straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent’ [p. 4].
First, the majority sought to address dissent’s state action claim. It held that the way the President uses his account in his official capacity takes precedence over the nature of his account in determining First Amendment violations. The majority took refuge in the Supreme Court’s decision in Lugar v. Edmondson Oil Co. to determine that a particular conduct is state action ‘fairly attributable to the state’ when the claim of constitutional violation is against a party whose official character lends the weight of the state to his decisions [p. 7]. Since the President qualifies under the Lugar test, his use of Twitter amounts to state claim.
With respect to the argument of the dissent that the distinction between personal pursuits and official duties was blurred, the majority noted the ‘substantial and pervasive government control’ over the account, with the President and his staff using the same official channel of communications quite frequently. This was further evidenced by preservation of the President’s tweets as official record under the Presidential Records Act and involvement of White House staff in drafting/posting of tweets – all giving a strong presumption in favour of state claim.
On the use of Twitter as a public forum, the majority quoted Packingham v North Carolina, noting how ‘social media users engage in a wide array of protected First Amendment activity on topics as diverse as human thought’ [p. 9]. It disregarded the disaggregation argument (point iii above) with a seemingly straightforward analogy – much like at public spaces where the statements made by public officials is government speech but public comments are allowed at a gathering, a discussion on a tweet is, as well, an ‘interactive space’ protected under the Constitution.
Next, the Court explained that a public official’s action to exclude critics selectively on account of their displeasing comments (viewpoint discrimination) is an ‘egregious form of content discrimination’ and presumed to be unconstitutional [p. 12] In that sense, there was no ‘mechanical’ application of the public forum doctrine, as Twitter possessed the qualifications for extension of the doctrine on account of its openness to the general public and neutrality of views (the majority distinguished Twitter from television broadcasters in Forbes case which was cited by the dissent to argue against application of public forum doctrine).
Finally, arguing against the ‘personal’ nature of Trump’s twitter account, the majority cited the Appellate Court’s factual finding on repeated use of the account and its interactive features as an ‘official vehicle of governance’. More importantly, the Court noted that in cases where the account were to be categorized as a non-public forum, it would still not be permitted to exclude individuals expressing disfavored viewpoints. The majority pointed towards the diverse bundle of features that Twitter offers as a justification for the distinction highlighted by the Appellate Court (between the tweet and its interactive space). This distinction was held to be an integral part of the Twitter experience and the use of it, in view of the Court, had become the ‘most important official channel of communication’ of the President [p. 18].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
First Amendment principles apply when a government official opens a space to the public and invites citizens to share their thoughts with the official and other interested citizens because he creates a public forum for speech. In the 2019 decision of the Appellate court, it noted that “the best response to disfavored speech on matters of public concern is more speech, not less.” By denying the rehearing en banc, the Court in this case reaffirmed that the right to receive information is reciprocal to the right of free speech. It also strongly restated the dangers of trifling with First Amendment rights on social media platforms which provide interactive spaces, and the harm in excluding persons from an otherwise open dialogue merely because they expressed views disfavored by the official.
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