Trump can’t deny access to his tweets, court rules

By using his personal Twitter account to announce official actions — banning transgender soldiers, for example, or firing his first chief of staff — President Trump has been able to communicate his policy decisions instantly to millions of followers. But that also brings the First Amendment into play, a federal appeals court said Tuesday, and that means Trump can’t deny access to his critics.

Once the president has opened the @realDonaldTrump account to members of the public, who can then circulate his messages and post replies, “he may not selectively exclude those whose views he disagrees with,” the Second U.S. Circuit Court of Appeals in New York said in a 30 ruling.

That’s how Trump has treated online dissidents, including seven who filed the lawsuit in July 2017.

One was Rebecca Buckwalter, a Washington, D.C., writer and political consultant. After Trump tweeted in June 2017 that if he had “relied on the Fake News” of established media outlets, “I would have had ZERO chance winning WH,” Buckwalter replied, “To be fair you didn’t win the WH Russia won it for you.”

When Trump used the account that month to hail the opening of a coal mine in Pennsylvania, Brandon Neely, a Houston police officer and Iraq war veteran, commented, “Congrats and now black lung won’t be covered under #TrumpCare.” Both Buckwalter and Neely were promptly blocked from Trump’s account, preventing them from viewing, answering or relaying any of his tweets.

Government lawyers argued that the account, which Trump had established as a private citizen in 2009 and now has more than 60 million followers, retained its individual character, and that the president had the same right as any other Twitter user to control access. But the court, upholding a federal judge’s ruling, said the argument was belied both by the nature of Trump’s tweets and by his administration’s characterization of his account.

Thenpress secretary Sean Spicer told reporters in June 2017 that tweets on @realDonald Trump should be considered “official statements by the president,” Judge Barrington Parker said in Tuesday’s decision. And he said the account “is one of the White House’s main vehicles for conducting official business.”

Trump, Parker noted, had first announced on Twitter his ban on transgender military service; his firing of Chief of Staff Reince Priebus; his nomination of Christopher Wray as FBI director and his discussions with South Korea’s president about the North Korea nuclear program. And the National Archives has advised the White House that Trump’s tweets are official records that must be preserved, Parker said.

The ruling follows a similar decision in January by a federal appeals court in Richmond, Va., against a county supervisor in Virginia who had briefly barred a resident from her Facebook page after he accused local officials of corruption. The court said it was a public forum, protected by the First Amendment, because the supervisor had labeled it her “county Facebook page” and used it to communicate with constituents. That ruling was not appealed.

“Public officials are expected to withstand withering criticism, even intemperate, rude and insulting criticism,” said attorney Katie Fallow of the Knight First Amendment Institute at Columbia University, who represented plaintiffs in both cases.

Fallow said a future president might avoid such rulings by refraining from using social media as “their main vehicle for conducting the business of government.” Otherwise, she said, rules on public access to a chief executive’s account “must apply neutrally to critic and supporter.”

In the Trump case, she said, the White House “unblocked” the seven plaintiffs from the Twitter account after the federal judge’s initial ruling in May 2018, and later restored access to 70 or 75 users who had been blocked, but is still blocking two or three dozen critics from the account.

Twitter and other social media outlets are “a wonderful device for generating discussion over public policy issues ... but government has to use it evenhandedly,” said Chuck Tobin, a First Amendment lawyer in Washington, D.C., who is not involved in Tuesday’s case.

“When government opens up a town square for people to come and speak, it can’t exclude people because it doesn’t like their message,” he said. “So long as there is no violent conduct in the public square, people are free to come and say what they want.”

The White House did not respond to a request for comment. The ruling could be appealed to the Supreme Court.