This article originally appeared in Goldberg Segalla’s On Appeal. Read the issue here.
In the age of social media, governments and government actors are able to communicate immediately and directly to their followers around the world. It is no longer novel or surprising to read that President Trump is tweeting about interest rates at the Fed, health care, the border, the price of oil, various media outlets, the commemoration of Vietnam Veterans, and the Washington Capitals’ Stanley Cup win—all within a single week.
Do tweets constitute the speech of government business? More specifically, may a public official—specifically the President—block a person from his Twitter account in response to the political views that the person has expressed?
Social media is forcing everyone, including government ac-tors and the courts, to analyze how the First Amendment fits into these ever-evolving digital platforms. Appellate courts are now starting to encounter cases involving the public forum doctrine and whether (and how) it applies in spaces like Twitter, Instagram, and Facebook. Are social media plat-forms—particularly the comment section—public fora? If so, does that mean that the prohibition on viewpoint discrimination applies in such digital spaces?
Appellate courts are starting to confront the issue and appear to be answering both questions in the affirmative. As a result, elected officials throughout the country—up to the highest level—are learning to navigate how viewpoint discrimination and the public forum doctrine applies to their social media accounts, specifically when they block users from viewing or commenting.
In recent and ongoing cases, government officials have been challenged in court for blocking individuals. They claim that the public forum doctrine and the prohibition on viewpoint discrimination are ill-suited to digital accounts and impermissibly stretched to apply to social media. Free speech proponents, on the other hand, invoke the doctrine to limit the government’s ability to block and silence critics.
The Second Circuit Court of Appeals just heard an argument on these issues on March 26, 2019 in the case of The Knight First Amendment Institute v. Trump, et al. What brought that case to the Circuit Court of Appeals? The Knight First Amendment Institute and seven individuals who had been blocked from President Trump’s Twitter account, @realDonaldTrump, and who sued the President and other members of his communications team alleging that they violated the First Amendment by blocking them because they criticized the President or his policies. The plaintiffs asserted, among other arguments, that the Twitter account is a public forum under the First Amendment, and that the government therefore cannot exclude people from that forum based on their views.
In May 2018, the U.S. District Court for the Southern District of New York agreed with the plaintiffs. In a 75-page decision, Judge Naomi Reice Buchwald held that portions of the @realDonaldTrump Twitter account where users 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 blocking the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. The District Court rejected the contentions of the defendants, including President Trump, that the President’s personal First Amendment interests superseded those of the plaintiffs.
The parties agreed that, although the @realDonaldTrump account had been created in 2009, the President has used the account to communicate and interact with the public about his administration since his inauguration in January 2017. There was no dispute that the account is generally accessible to the public without regard to political affiliation or any other limiting criteria, as any member of the public can view the tweets from the @realDonaldTrump account without being signed in to Twitter, and they agreed that anyone who wants to follow the account can do so. Additionally, the defendants did not contest the plaintiffs’ allegation that they had been blocked from the President’s Twitter ac-count because they posted tweets criticizing the President or his policies.
Judge Buchwald concluded her lengthy decision by holding that the speech in which the plaintiffs wish to engage—criticizing the President or his policies—is protected by the First Amendment, and that the President and the White House Social Media Director exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of tweets sent from the account. That interactive space is the portion of the account where other users may reply and directly engage with his tweets. Judge Buchwald held that such an interactive space is a public forum, and the “viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.” The court rejected the administration’s arguments that the First Amendment did not apply to the President in this case be-cause he was acting as a private individual.
The plaintiffs requested both declaratory and injunctive relief. The District Court held that injunctive relief was unnecessary, and concluded that a declaratory judgment was sufficient, stating that “no government official—including the President—is above the law, and all government officials are presumed to follow the law as it has been declared.” Judge Buchwald did not order Trump to unblock the plaintiffs, but instead issued declarative relief: “the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment.”
The decision is narrow, applies only to the Trump administration, and is not binding on other public officials. Moreover, the court held that only portions of the Twitter account are considered a public forum subject to First Amendment protections, not the entire ac-count or Twitter as a whole.
Following the May 2018 decision and order, the President unblocked the seven individual plaintiffs but also appealed. The appeal was argued before the Second Circuit Court of Appeals on March 26, 2019. On behalf of the President, the Department of Justice argued, among other things, that the President’s Twitter account is not a public forum. In response to challenges from the judges asking how the President is not acting in his official capacity when tweeting, Justice Department lawyer Jennifer Utrecht acknowledged that the President’s tweets are official government statements, but claimed he is acting in his private, unofficial capacity when he decides to block followers from the account. The court noted that the President was being represented by the Justice Department and not a private attorney because he is not a private individual. The judges asked how the President’s tweets could not amount to official government business, including when he blocks his critics from access to the account.
Jameel Jaffer, Executive Director of the Knight Institute, argued the case on behalf of the plaintiffs. He argued that “the president uses his Twitter account as an extension of his office” and that therefore “the First Amendment forecloses him from blocking people from the account simply because they’ve criticized him or his policies.”
The Second Circuit has not yet issued a decision, which will only be the second federal appellate court to weigh in on the issue.
Earlier this year, the U.S. Court of Appeals for the Fourth Circuit became the first appellate court in the country to hold that a public official’s social media account could constitute a public forum under the First Amendment. In Davison v. Randall, the court held that a lo-cal county official’s Facebook page, which she used for official purposes, was a public forum and that her decision to temporarily block the plaintiff from posting on the page was unconstitutional viewpoint discrimination. The plaintiff had sued the official, who was the chair of the county board of supervisors, alleging that the chair violated his First Amendment and due process rights by blocking him from the chair’s Facebook page. The plaintiff sought both injunctive and declaratory relief. The U.S. District Court for the Eastern District of Virginia dismissed the plaintiff ’s due process claims but entered judgment in his favor on his free speech claims. The parties cross-appealed, and the Court of Appeals for the Fourth Circuit affirmed, holding, among other things, that the chair of the county board of supervisors acted under color of state law in maintaining a government official’s webpage on Facebook and in banning the plaintiff from the page; the Facebook page qualified as a public forum, for First Amendment purposes; and the chair of the county board of supervisors engaged in viewpoint discrimination in violation of the First Amendment by banning the plaintiff from posting on it.
The U.S. Supreme Court has not yet weighed in on the subject, and the Fourth Circuit and soon Second Circuit decisions will set a precedent that is likely to be followed by other officials at all levels of government.