News
July 19, 2019

Second Circuit: President Trump's "Blocking" of Users on Twitter Violates the First Amendment

Advisory

BACKGROUND

On July 9, 2019, the United States Court of Appeals for the Second Circuit issued Knight First Amendment Inst. at Columbia University v. Trump1and affirmed the district court's ruling that President Trump violated the First Amendment when he "blocked" users from his Twitter account. Specifically, the court held that President Trump engaged in unlawful viewpoint discrimination when he "blocked" users who criticized him or his policies on his @realDonaldTrump Twitter account from further viewing and interacting with the tweets on his page.

In 2009, before his presidency, Trump registered the @realDonaldTrump account as a personal account, and used it to comment on pop culture, politics, and other topics. Since his inauguration in January 2017, President Trump has used the account almost exclusively to communicate and interact with the public on issues relating to his administration and to conduct official government affairs. The President has explained that he uses the account to promote his legislative agenda, announce official administration decisions, and to engage with foreign political leaders.

The account is open without restriction to the public, such that anyone can view the President's tweets by accessing his page. Additionally, unless they have been "blocked," users can access his account to interact with his tweets in a number of ways. For instance, they can comment on his tweets, express endorsement by "liking" or "retweeting" them, and reply to other users' comments to his posts. President Trump's tweets generate an extraordinary high level of public engagement, typically with hundreds of thousands of comments and replies.

THE DISTRICT COURT DECISION

After assuming office, President Trump "blocked" certain users on Twitter for criticizing him or his policies. When "blocked," these users were unable to directly view or interact with President Trump's tweets on his account while logged into their accounts. Thus, in order to engage with the President's tweets, they had to rely on "workarounds," such as creating a new account, or commenting on "retweets" of President Trump's posts on another account.

In July 2017, a number of "blocked" users filed a lawsuit in the Southern District of New York against President Trump and other White House staff, alleging that the "blocking" constituted viewpoint discrimination, and therefore violated their First Amendment rights. The district court ruled in their favor, holding that the "interactive space" on the President's account — the areas where users can reply to, "retweet," or "like" his tweets (as well as comments to them) is a public forum for First Amendment purposes, and that exclusion of the plaintiffs from such spaces because of their expressed political views was unconstitutional.

SECOND CIRCUIT AFFIRMS

On appeal, the Second Circuit affirmed. In doing so, the court rejected each of President Trump's arguments. First, President Trump asserted that the act of "blocking" the plaintiffs is not subject to constitutional scrutiny because he acted as a private citizen in controlling his private Twitter account. The First Amendment restricts the government from regulating speech, but not does not apply to purely private actors. Accordingly, First Amendment concerns arise when the President restricts speech in his official governmental capacity on a government-controlled account, but are not implicated if he acts in a non-governmental capacity on a purely private account. President Trump argued that because he registered the account as a personal one in 2009, and will retain private control over it after his presidency, the account is not government-controlled for First Amendment purposes. The court disagreed, explaining that the government's ownership of a space, in terms of it having title rights to it is not determinative, and that pervasive temporary control can also render a space government-controlled.

In applying this principle, the court found that since the start of the Trump presidency, the government maintained "substantial and pervasive involvement with, and control over the Account" rendering it government-controlled, not private. The court observed that President Trump and other White House staff continuously have represented that the account belongs to and is operated by Trump in his role as President. For instance, the account states that it is registered to "Donald J. Trump, '45th President of the United States of America, Washington, D.C.'" Its header photo shows President Trump performing official duties, such as signing executive orders and meeting foreign dignitaries. Official government accounts, including the @WhiteHouse and @POTUS accounts, have urged users to follow the account, and have frequently "retweeted" its posts. Additionally, the court emphasized that, functionally, President Trump uses the account to conduct official government affairs, including to make public announcements on policy matters, and to engage with foreign leaders noting that "since he took office, the President has consistently used the Account as an important tool of governance and executive outreach." The court concluded that because the President "acts in an official capacity when he tweets . . . he acts in the same capacity when he blocks those who disagree with him."

The President next argued that his Twitter account is not a public forum, and that even if it were, the plaintiffs were not excluded from it. The court disagreed, finding that President Trump created a public forum when he used the account as a vehicle for governance, and made its interactive features accessible to the public without limitations. It recognized users' replies, "retweets," and "likes" to President Trump's tweets (and the comments to them) as forms of expressive speech and conduct. Accordingly, it held that by "blocking" the plaintiffs thereby preventing them from engaging in protected expression on his account the President did, in fact, exclude them from a public forum. The court was unpersuaded by the argument that the plaintiffs were not excluded because they could engage with his tweets through "workarounds," such as commenting on "retweets" on another user's page, explaining that "burdens to speech as well as outright bans run afoul of the First Amendment."

Finally, President Trump argued that, to the extent the account is government-controlled, the content of the account should be considered government speech. Under the government speech doctrine, the Free Speech Clause does not require the government to maintain viewpoint neutrality with respect to its own speech about governmental affairs. The court disagreed, and held that while President Trump's original tweets (those that he produced himself) are government speech, the "retweets," replies, and "likes" of other users in response were private speech which the President could not exclude from a public forum because of its political message. Quoting Matal v. Tam2 the court recognized the Supreme Court's recent caution against "'silenc[ing] or muffl[ing] the expression of disfavored viewpoints' under the guise of the government speech doctrine," and noted that extending "the doctrine in the way urged by President Trump would produce precisely this result."

In Knight, the Second Circuit joined the Fourth and Fifth Circuits which issued similar decisions this year in Davidson v. Randall3 and Robinson v. Hunt County, Texas4in recognizing the unconstitutionality of banning disfavored political speech on a public official's social media account. By recognizing that "social media is entitled to the same First Amendment protections as other forms of media" and that "[r]eplying, retweeting, and liking are all expressive conduct," this decision will provide useful guidance to a growing number of social media banning cases pending in federal courts, and likely impact how public officials with social media presence engage with their constituents online.

For instance, Knight recognized that public officials are not categorically prohibited from "blocking" users on their social media accounts, and that the constitutionality of "blocking" turns on whether the account is government-controlled or private. Noting that "not every social media account operated by a public official is a government account," the court explained that determining which category an account falls into is a fact-specific inquiry that depends on "how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account."

Moreover, Knight is significant for holding that the class of plaintiffs with standing to sue in social media blocking cases is not limited to "blocked" users, but also includes those with a desire to read "blocked" comments and posts a group that is vast and seemingly boundless. In addition to the individual plaintiffs, Knight First Amendment Institute, an organization that supports the freedoms of speech and press in the digital age and a follower of the @realDonaldTrump account, was a plaintiff in Knight. It sued President Trump under the theory that the President's "blocking" infringed upon its desire to read comments that would have otherwise been posted. The Second Circuit affirmed the district court's ruling that all plaintiffs in the case had standing to sue. While it did not provide much discussion on this issue because standing was not challenged on appeal, the lower court set forth useful insight. The district court held that the Knight Institute's alleged injury-in-fact (the infringement of their desire to read "blocked" posts) was not a generalized grievance, and therefore suitable for Article III standing, notwithstanding the large number of other individuals who might share this injury. It hinted that the Knight Institute's bare assertion that it possessed a desire to view the "blocked" content was sufficient to confer it standing, and explained that even if it could not, the fact that the Institute had followed one of the seven individual plaintiffs on twitter was enough to establish injury-in-fact. 

In the Second Circuit, social media users have swiftly used Knight to hold other politicians accountable to its holding. A few days after it was issued, Knight formed the legal basis for a number of First Amendment challenges against Congresswoman Alexandria Ocasio-Cortez for allegedly "blocking" the plaintiffs on Twitter in response to the political views they expressed on her account. In light of Knight and the other rulings this year, public officials with social media presence should take to heart the court's observation that the "debate" taking place on their accounts is a "good thing" as it "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" and that "the best response to disfavored speech on matters of public concern is more speech, not less." Knight First Amendment Inst. at Columbia University v. Trump5.

© Arnold & Porter Kaye Scholer LLP 2019 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. 928 F.3d 226 (2d Cir. 2019

  2. 137 S. Ct. 1744, 1758 (2017)

  3.  912 F.3d 666 (4th Cir. 2019)

  4.  921 F.3d 440 (5th Cir. 2019)

  5. 928 F.3d 226 (2d Cir. 2019)

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