President can’t block tweets, judge rules
Court decides Trump violated First Amendment
President Trump’s blocking of his critics on Twitter is unconstitutional, a judge ruled Wednesday in a decision that addresses a fairly new issue for our time: the relationship on social media between those who govern and the governed.
Last July, seven Twitter users filed a lawsuit after being blocked from the @realDonaldTrump account, charging that their speech was being suppressed. According to their profiles, the Twitter users who sued the president for blocking them — and won — include an outspoken war veteran, activist songwriter, surgeon, comedian, sociologist, cyclist anti-doping advocate and a liberal blogger.
Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York sided with the plaintiffs.
“We hold that portions of the @realDonaldTrump account … 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,” Buchwald wrote in a 75-page decision.
Those viewpoints include that of Brandon Neely, one of the plaintiffs. His Twitter bio says he is a “loudmouth former GTMO guard that believes it should be shut down,” and that he served in Iraq. His bio also includes the hashtag #BlockedByTrump.
According to the lawsuit, he had the following exchange with the president in June 2017: Trump tweeted, “Congratulations! First new Coal Mine of Trump Era Opens in Pennsylvania.” Neely replied, “Congrats and now black lung won’t be covered under #TrumpCare.”
Another plaintiff, Holly Figueroa, describes herself on Twitter as “Grammy-losing songwriter” and “National #MarchForTruth coorganizer.”
In May 2017, she responded to this Trump tweet: “British Prime Minister May was very angry that the info the U.K. gave to U.S. about Manchester was leaked. Gave me full details!” Figueroa called Trump the leaker and further responded with a GIF image showing the pope seemingly losing the will to smile as he looks at Trump’s face, saying, “This is pretty much how the whole world sees you.”
The other plaintiffs are Rebecca Buckwalter, Philip Cohen, Eugene Gu, Joseph Papp and Nicholas Pappas — all of whom have a considerable number of Twitter followers. In the lawsuit, they said they were blocked by the @realDonaldTrump account soon after they tweeted something critical at or about the president.
The Knight First Amendment Institute, a nonprofit at Columbia University, first sent the president a letter in June 2017, asking him to unblock his critics. When Trump’s office did not respond, the institute filed the lawsuit on behalf of the plaintiffs the following month.
“The First Amendment prohibits government officials from suppressing speech on the basis of viewpoint,” Katie Fallow, senior staff attorney at the institute, said in a statement Wednesday. “The court’s application of that principle here should guide all of the public officials who are communicating with their constituents through social media.”
Erwin Chemerinsky, dean of Berkeley Law at UC Berkeley, agrees.
“The judge followed clear law: A government official cannot give selective access of this sort,” Chereminsky said.
When a Twitter user is blocked by another, he or she cannot see the blocked user’s tweets or replies, or interact with that user. The Department of Justice argued last year that users who are not logged into their Twitter accounts can still see the president’s tweets online because they are public. “We respectfully disagree with the court’s decision and are considering our next steps,” a DOJ spokeswoman said in an email Wednesday. What about Trump’s right to block whomever he wants to block? “While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him,” Buchwald wrote. She also noted that Trump uses his @realDonaldTrump account for official business. “The judge pointed to a number of ways in which the Twitter account has been used for governmental purposes, and that’s really the question,” said Michael McConnell, who teaches First Amendment law at Stanford Law School. McConnell said he was skeptical of the lawsuit when he first heard about it because Twitter is “really a 21st century way of writing, receiving letters. No one can say that the president has to respond to everyone.”
But in her decision, the judge addressed that question: @realDonaldTrump blocked, instead of merely muted, the plaintiffs. Twitter lets its users mute one another. If Trump had merely muted the plaintiffs, he could ignore their replies to his tweets but they would still be able to see his tweets.
Also named as a plaintiff
in the lawsuit is Daniel Scavino, the White House social media director. Buchwald said in her decision that because of his position, Scavino can be compelled to unblock the plaintiffs on Twitter. However, she refrained from ordering Scavino or Trump to do so.
“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,” the judge wrote.
The White House has not returned a request for comment. Twitter also issued no comment.
Earlier this month, the Knight institute announced it has filed a similar lawsuit over a Facebook user who was temporarily blocked from the page of a public official in Virginia.