Jul 15, 2019

President’s Right to “Block” Users on Twitter Trumped by First Amendment

Daniela Abratt reflects on the strength of the First Amendment to uphold poliltical discourse in the realm of social media.

From the traditional town hall to the digital Twitter universe, the First Amendment right to engage in political discourse was recently upheld in the social media realm.  In a resounding unanimous decision, the U.S. Court of Appeals for the Second Circuit held last week that President Trump violated the First Amendment rights of Twitter users when he blocked them from his account based on their political views.  The court determined that the President undoubtedly was using his Twitter account for official government purposes and as such, when he opened that platform for interaction with the public, he was prohibited from excluding people whose views he disagrees with.

The case, Knight First Amendment Institute v. Trump, is yet another in a growing body of case law addressing the use of social media in the political sphere. Two other cases this year out of the Fourth and Fifth Circuits both found that public officials violated the law when they banned certain constituents‚Äô access to their official government Facebook pages or blocked them from commenting on posts. What these cases and now Knight make clear: the First Amendment is no less strong in the social media universe when used as a platform for interactions with government.

The First Amendment prevents a government actor from discriminating against a particular political viewpoint.  In Knight, a number of individuals sued the President, his then-Press Secretary Sarah Huckabee Sanders, and his Director of Social Media Daniel Scavino, arguing that the President‚Äôs Twitter account served as a public forum for political discourse and that the President, in his official government capacity, discriminated against them based on their views by blocking them.  Indeed, the President‚Äôs counsel from the Department of Justice conceded that these users were each blocked because they posted replies criticizing Trump or his policies.  In 2018, the Southern District Court of New York agreed with the plaintiffs that the President had engaged in viewpoint discrimination. In unanimously affirming that decision, the Second Circuit held that ‚Äúthe First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.‚ÄĚ

The appeals court rejected the President‚Äôs argument that he was merely exercising control over a private, personal account.  Rather, the court found ‚Äúoverwhelming‚ÄĚ evidence to the contrary, explaining that Trump consistently uses his account to announce official actions and defend his policies; his account is registered to him as the 45th President of the United States; the account features photographs of him undertaking official duties; he utilizes White House staff to manage his account; and the National Archives has concluded his tweets are official records.  With this in mind, the court determined that Trump uses his Twitter account in his official capacity as President when he tweets and, thus, in his official capacity when he blocks users.

The court then held that the President‚Äôs Twitter account was a ‚Äúpublic forum‚ÄĚ specifically made available as a channel through which the President can talk directly to the American people without limitation. As such, the First Amendment prevents the President from discriminating against users who are critical of him. By blocking these users, the court explained, these people were prevented from viewing the President‚Äôs tweets, replying to them, and more importantly, from conversing with other users who were speaking with or about the President.

The court reaffirmed that criticism of Trump is protected speech, that replying and retweeting are forms of speech, and that even ‚Äúliking‚ÄĚ tweets is a form of expressive conduct that signifies approval of a message.

This case may be the one of the more highly publicized ones to address the use of Twitter as a medium for political discourse, but it certainly will not be the last.  In fact, the Second Circuit may soon have more cases to review, as just hours after the Knight opinion was decided, former Democratic New York state assemblyman Dov Hikind filed a federal lawsuit in New York against U.S. Congresswoman Alexandria Ocasio-Cortez for blocking him on Twitter, citing to Knight and claiming that she blocked him ‚Äúpurely because of his speech in support of Jewish values and Israel.‚ÄĚ  That same day, Joseph Saladino, a social media personality and Republican Congressional candidate, announced on Twitter that he was also suing the Congresswoman for blocking him on Twitter.

As technology and online social media continue to expand, courts across the country will continue to face challenges regarding the interaction between elected officials and those they serve.  Certainly, additional and more nuanced issues will arise.  For instance, the Second Circuit made it clear that it was not deciding whether an elected official violates the Constitution by excluding users from a wholly private social media account, nor whether private social media companies are bound by the First Amendment when policing their platforms.

Surely, one enduring principle will remain unwavering: freedom of speech is vital to the functioning of our democracy.  As the Second Circuit in Knight said:

“The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‚Äźopen, robust debate.  This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen.  This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing.  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.”

Daniela B. Abratt is an attorney in the Fort Lauderdale office of Thomas & LoCicero with a practice concentration in media and communications law, including defamation and invasion of privacy. She also focuses on business litigation and intellectual property matters.

With offices in Tampa and Fort Lauderdale, Thomas & LoCicero is a Florida law firm that is widely known, respected and committed to free speech and a free press.  The firm represents the industry‚Äôs leading electronic and traditional publishers, as well as individual journalists, bloggers and influencers of social media on issues ranging from news gathering to invasion of privacy, from defamation to pre-publication review.  At the heart of the firm‚Äôs mission is to champion free speech and defend journalism every day.

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