2nd Circuit affirms: Trump’s Twitter blocks are “unconstitutional viewpoint discrimination”


When Donald Trump first created the @realDonaldTrump account in 2009, he could feel free to block anyone he wanted for any reason. After he leaves office, the 2nd Circuit ruled today, he can go back to arbitrarily granting access to his stream of consciousness feed. However, the court unanimously upheld a ruling that declared the Twitter account a public vehicle for official business while Trump is in office — and blocks an unconstitutional manner of viewpoint discrimination.

Ken Darroch will no doubt be relieved:

President Trump cannot block his critics from the Twitter feed he regularly uses to communicate with the public, a federal appeals court said Tuesday, in a case with implications for how elected officials nationwide interact with constituents on social media.

The decision from the New York-based appeals court upholds an earlier ruling that Trump violated the First Amendment when he blocked individual users critical of the president or his policies.

“The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees,” wrote Judge Barrington D. Parker in the unanimous decision from the U.S. Court of Appeals for the 2nd Circuit.

It’s not just that Trump is president, Parker wrote in the decision. It’s that the @realDonaldTrump account has become a prominent avenue for public information in his administration. Indeed, having a paid White House staffer help operate it makes it into an official venue that must remain open to all, at least while Trump is president:

Moreover, the Account is one of the White House’s main vehicles for
conducting official business. The President operates the Account with the assistance of defendant Daniel Scavino, the White House Director of Social Media and Assistant to the President. The President and his aides have characterized tweets from the Account as official statements of the President. For example, the President used the Account to announce the nomination of Christopher Wray as FBI director and to announce the administration’s ban on transgender individuals serving in the military.  The President used the Account to first announce that he had fired Chief of Staff Reince Priebus and replaced him with General John Kelly.  President Trump also used the Account to inform the public about his discussions with the South Korean president concerning North Korea’s nuclear program and about his decision to sell sophisticated military hardware to Japan and South Korea.  …

After concluding that the defendants had created a public forum in the interactive space of the Account, the court concluded that, by blocking the Individual Plaintiffs because of their expressed political views, the government had engaged in viewpoint discrimination.  Id. at 577.  Finally, the court held that the blocking of the Individual Plaintiffs violated the Knight Institute’s right to read the replies of the Individual Plaintiffs which they cannot post because they are blocked.

In other words, Trump can’t eat his public cake and have it privately as well.

Still, this seems needlessly overthought and overwrought. The purpose of the First Amendment is to prevent a prior restraint of speech by Congress, the executive branch, and the states, especially regarding political speech. Does a Twitter block really have a silencing effect on speech? Of course not; the plaintiffs can speak all they wish on Twitter. It doesn’t really even prevent them from knowing the content of Trump’s speech even on Twitter, which is widely reported in other outlets. There is more risk to free speech from Twitter itself and its arbitrary speech codes than there is from a presidential account blocking trolls from its feed. The blocked accounts can tweet on their own from those reports, which Knight Institute can then read if they have any real interest in those responses.

It’s a silly enough case that the administration might just decide to cut its losses at this point and drop the matter. It would be interesting to get a Supreme Court ruling on this, even if it’s to deny cert on an appeal of this ruling. It would be nice to see the top court remind everyone that social media platforms are not nearly as significant as everyone — including federal judges — make them out to be. Casting a block as some sort of prior restraint or Siberian exile from free speech is absurd, and the Supreme Court deserves an opportunity to set a realistic perspective on social media interaction.

However, let’s also give the court credit for much wisdom in its concluding paragraph. Power Line’s Scott Johnson hopes that universities and municipal authorities are paying attention, emphasis mine:

The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind 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.

That’s very true — but it doesn’t necessarily follow that I’m forced to listen to it, either, nor are public officials. The First Amendment guarantees the right to speak, not a right to an audience.

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