Last week a federal judge in New York decided that President Donald Trump violated the First Amendment by blocking individuals from his Twitter account who criticized him or his tweets. Trump admitted he barred the individuals from access to his tweets and from commenting on them because of their political opposition to Trump’s positions.
Judge Naomi Reice Buchwald summarized her decision this way:
“This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.”
I don’t use Twitter. But I learned a lot about how it works from Judge Buchwald’s exhaustive (75 pages) consideration of the facts and her meticulous application of First Amendment law. (The case is Knight First Amendment Institute v. Trump, 17 Civ. 5205 (S.D.N.Y. May 23, 2018).)
It seems that any Twitter user can configure the account to block persons the user does not wish to see the user’s tweets or to comment on them. Blocking spares the user from having to see unwanted replies. But it also bars the blocked person from replying, retweeting or commenting on the user’s tweets. Alternatively, a user can “mute” certain persons. The user then can ignore any comments, but the person muted can both see the user’s tweets and then retweet and comment on them.
President Trump’s Twitter account, @realDonaldTrump, is managed by one Daniel Scavino, a White House aide. When several individuals criticized Trump’s tweets and his policies, Trump elected to “block” them from access to the account rather than simply “mute” them. They brought suit.
Judge Buchwald found that Trump did not violate the plaintiffs’ free speech rights by simply preventing them from access to his tweets. The tweets were his or the government’s speech, not theirs. But he violated the First Amendment by preventing his critics from interacting with his tweets and adding their own comments, viewable by thousands of others, which was their free speech right.
His account is registered to “Donald J. Trump, 45th President of the United States of America.” His tweets are generally available to the public. The tweets are official records that must be preserved under the Presidential Records Act. By using his account to announce public policies, make appointments, fire officials, promote his legislative agenda, and engage with foreign leaders, and allowing anyone to read and reply to his tweets, Trump created what the courts call a “public forum.” Having done so, he could not bar individuals from participating in this forum based on his political disagreement with them. That constitutes “viewpoint discrimination” by government, a well-recognized First Amendment violation. Government, including the President, can’t set up a forum and then pick and choose who gets to say anything based on agreement or disagreement with what people want to say.
Judge Buchwald put it this way:
“We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”
(Of course, you don’t have to worry if you choose to block someone from your account. The First Amendment restricts only government. For better or for worse, you’re not the government; Trump is.)
Judge Buchwald stopped short of ordering Trump not to block individuals with whom he disagreed. Bowing to separation of powers concerns about courts ordering the President to do anything, she simply issued a “declaratory judgment” that told Trump what the law is and said she expected he’d comply. She also noted pointedly that Scavino was not the president and could be the subject of a court order if need be. She said:
“Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.”
As the Supreme Court pointed out last year in a case involving access by registered sex offenders to social media, platforms like Twitter are the modern public square, and every governor in the nation and almost every member of Congress has a Twitter account. Judge Buchwald’s reasoning explicitly applies to them.
Trump’s use of Twitter is actually good from a free speech perspective. We get to learn directly from the President what he is thinking. While we may detest his thoughts (and despair over his misspellings and grammatical blunders), this direct connection promotes rather than discourages civic discourse. Now, under Judge Buchwald’s ruling, Trump can’t break that connection when you say things he doesn’t like. As the judge says, no government official is above the law.