A federal appeals court on Tuesday upheld a lower court ruling that President Donald Trump’s habit of blocking Twitter users he disagrees with violates the First Amendment.
A unanimous panel of judges in the U.S. Court of Appeals for the 2nd Circuit on Tuesday upheld the district court ruling finding the president’s prolific use of Twitter for official purposes means that blocking users for being critical amounts to discrimination based on their viewpoints.
Story Continued Below
The case was brought against Trump, his social media guru Dan Scavino and former White House press secretary Sarah Huckabee Sanders by a group of Twitter users who say they were blocked by the president, represented by attorneys with Columbia University’s Knight First Amendment Institute.
In the 29-page ruling, U.S. Circuit Court Judge Barrington Parker rejected the government’s arguments that Trump’s account, @realDonaldTrump, was the kind of “wholly private social media account” not subject to the First Amendment, noting that the White House itself has called the president’s account an official one and that Trump routinely uses the account to announce major policy and personnel moves.
Tuesday’s ruling did not make a broader judgment on the use of social media by public officials on a “wholly private social media account,” nor did it examine whether private companies are bound by the First Amendment when policing their platforms — both legally uncharted and contentious territory on what the judges note is a “relatively new type of social media platform to conduct official business and to interact with the public.”
“We conclude that the evidence of the official nature of the Account is overwhelming,” Parker wrote for the three-judge panel. “We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”
Trump’s challengers cheered Tuesday’s ruling, which affirmed a May 2018 ruling in the Southern District of New York.
“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” Jameel Jaffer, the Knight Institute’s executive director, said in a statement. “This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism.”
Parker, an appointee of President George W. Bush, also pointed out that the National Archives and Records Administration has deemed Trump’s Twitter handle an official account, notifying the White House that his tweets are “official records that must be preserved under the Presidential Records Act.”
The government argued that despite Trump’s critics being blocked from viewing or engaging with his tweets, the plaintiffs could have employed a number of workarounds including logging out of their accounts or creating new accounts.
But the panel ruled that doing so would be an unfair burden on the plaintiffs and also said tweets themselves are not the only features of the site protected under the First Amendment.
“A blocked account is prevented from viewing any of the President’s tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits,” Parker said.
Since he took office, Parker wrote, Trump has “consistently” used his Twitter account “as an important tool of governance and executive outreach” and called the evidence that Trump’s account and its “interactive features” are subject to the First Amendment “overwhelming.”
“Because the President, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him,” he added.
Accordingly, Trump “excluded the Individual Plaintiffs from government‐controlled property when he used the blocking function of the Account to exclude disfavored voices,” the judges found.
The government also contended that the plaintiffs did not have a First Amendment right to reply to the president’s tweets, a line of argument Parker shot down.
“While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees,” he wrote.
Parker concluded Tuesday’s ruling by lauding the importance of the First Amendment.
“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,” he said.