The Second Circuit Court of Appeals issued a defeat to President Donald Trump and more importantly a victory for First Amendment Rights in July, finding that the President could not block individuals on the social media platform Twitter. In the matter, Knight First Amendment Institute at Columbia University v. Trump, — F.3d –, 2019 WL 2932440 (2d Cir. July 9, 2019), the Second Circuit upheld the Southern District of New York’s ruling that the President’s Twitter account was effectively a public forum. Based on this finding, the Court held that President Trump could not restrict certain individuals’ access to his Twitter account because to do so would constitute “viewpoint discrimination” in violation of the First Amendment.
In his opinion, Circuit Judge Barrington Parker highlighted that though the account was made in 2009, before President Trump was elected, the account has become at least temporarily a government-controlled account and qualifies as a public forum. The opinion noted that the account had been used for governmental purposes in the past. This was made evident when the account was used to announce meetings with foreign leaders, or when it was used to announce the nominations of high-ranking officials, like Christopher Wray as the new Director of the FBI. Because the account was used in an “official capacity” to make announcements regarding governmental activity, the Second Circuit found that the President was likewise acting “in the same capacity when he blocks those who disagree with him.”
The court’s finding that the account’s activities “bear all the trappings of an official, state run account” lead to the unanimous opinion that the account constituted a public forum. Coupled with President Trump openly admitting that he blocked the individual plaintiffs because they criticized his policies on the social media platform, the court had little difficulty determining that the actions taken by the President were unconstitutional. This conclusion was further supported by the court’s examination of statements made by former White House Press Secretary Sean Spicer, who claimed that President Trump’s tweets were “official statements by the President of the United States.” The court found further support for their holding in the official statement from the National Archive and Records Administration concluding that President Trump’s tweets were “official records” under the Presidential Records Act of 1978 and that they “must be preserved” pursuant to that Act. Due to these actions and statements, the court found that President Trump opened his account to be accessed and interacted with by the public without limitation.
The court likewise rejected President Trump’s argument that the challenged activity on Twitter constituted “government speech” insulated from First Amendment attack. In reviewing this argument, the court stated that while President Trump did have the right to issue tweets that communicated his personal political opinions, the “government speech” doctrine did not render those tweets privileged from public criticism or attack. When President Trump responded to this criticism by blocking certain individuals from his platform, however, the court found that he was no longer engaged in “government speech” and was instead engaging in viewpoint discrimination.
This point is nuanced. While President Trump’s tweets themselves unquestionably qualify as “government speech,” the replies and comments individuals made in response to those tweets are not – they are instead instances of speech by a third-party made in a public forum, and are protected by the First Amendment. When President Trump blocked certain individuals from accessing that public forum and interacting with other members of the public through that forum going forward, on the basis of those individuals’ viewpoints, President Trump discriminated against the individuals holding those viewpoints in violation of the First Amendment. The court concluded that to let the President block individuals from engaging in the public forum would endorse “silencing and muffling the expression of disfavored viewpoints” and would be a clear violation by the government against free speech.
While the court noted that once out of office President Trump may resume blocking individuals from his Twitter, as he will again be a private citizen, until such time he must allow the voices of all persons to be heard on his Twitter account. While the subject of the lawsuit may appear to suggest otherwise, this issue should not be viewed as a political one. The Presidential Records Act mentioned above, for example, has been in effect during the past seven administrations and will likely be in effect far into the future. Likewise, the impact of this ruling will continue to carry an important message to future Presidents and other elected officials as well. Despite the rapidly changing nature of communication and speech, this Opinion represents an important commitment to principles of openness and dialogue that our nation was founded upon.
Illustrating this principle, following closely in the wake of the Second Circuit’s decision, former New York State Assemblyman Dov Hikind filed suit against Congresswoman Alexandria Ocasio-Cortez alleging that she had engaged in the same viewpoint discrimination President Trump had when she blocked him on Twitter. According to Mr. Hikind’s allegations, Rep. Ocasio-Cortez blocked him on Twitter after he expressed a dissenting opinion to her own. In supporting Mr. Hikind’s theory, a senior attorney at the Knight First Amendment Institute (which brought the lawsuit against President Trump) stated that the case did appear to be very similar to the case against President Trump and that “the same principles would apply based on our suit against Trump.” They further stated that they “hope [Rep. Ocasio-Cortez] would reconsider blocking legitimate political discussion” given that she had been “an eloquent champion of free speech” in the past.
Regardless of political opinion or affiliation, we should all be able to agree that free and open dialogue is an important feature of a healthy democracy. The Second Circuit’s ruling has furthered this vision and come to the defense of First Amendment rights for the entire nation. In a time when many voices feel silenced, and where the First Amendment’s guarantees of freedom of speech and freedom of the press have come under increasing threat, the court’s opinion reassuringly proclaimed that “the best response to disfavored speech on matters of public concern is more speech not less.”