2nd Circuit Affirms Trump Violated First Amendment by Blocking Twitter Critics

President Donald Trump violated the First Amendment in 2017 when he blocked users from his Twitter account, the 2nd U.S. Circuit Court of Appeals affirmed Monday (see 1806050068). The court denied the administration’s request for an en banc rehearing before the full panel in Knight v. Trump. Instead, the 2nd Circuit reaffirmed a prior, unanimous decision.

The Knight First Amendment Institute at Columbia University sued Trump in July 2017 for blocking at least seven users from his Twitter account after they criticized him. Judge Naomi Reice Buchwald of U.S. District Court for the Southern District of New York ruled in May 2018 that Trump’s actions violated the First Amendment, and the 2nd Circuit affirmed that decision last July. Trump unblocked the plaintiffs from his Twitter account, and the administration filed for rehearing. The White House didn’t comment Monday.

“We’re pleased that the full appeals court will leave the panel’s original ruling in place,” said Knight Institute Executive Director Jameel Jaffer, who argued the case, Monday. “The ruling is an important affirmation of core First Amendment principles as applied to new communications technology.”

Trump’s Twitter account is a public forum and “a primary vehicle for his official communications,” Judge Barrington Parker concluded in justifying the denial. Trump violates free speech when he “excludes persons from the dialogue because they express views with which he disagrees.” The decision was a “straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent,” Parker wrote.

The First Amendment doesn’t guarantee the right to “post on other people’s personal social‐media accounts, even if those other people happen to be public officials,” Michael Park and Richard Sullivan argued in dissent. When public officials use personal accounts to express views, they don’t engage in “state action,” the two judges wrote. Twitter is privately owned and controlled, so a public official’s use doesn’t amount to state action, Park and Sullivan said. By blocking users, Trump exercised a feature freely available to every Twitter account, so his actions weren’t “fairly attributable to the State,” they argued.

The dissent “misconstrues the applicable law and overstates the scope of the panel’s holding,” Parker wrote. He disagreed with the dissent’s main argument that the account isn’t a public forum because it’s Trump’s personal account, saying Trump uses it as a “tool of governance.” If an official blocks criticism, it’s “unconstitutional viewpoint discrimination,” Parker wrote.

Citing “cursory perusal of examples” on Trump’s account, Parker argued the president regularly tweets about national matters such as Iran in “his capacity as the nation’s chief executive.” The critical question for First Amendment “purposes is how the President uses the Account in his capacity as President,” Parker said. Circuit Judges Debra Ann Livingston and Susan Carney didn't participate in the decision.