It’s one thing for most of us to block Twitter users who annoy us, but it’s a violation of those users’ First Amendment rights for the president to do so, a federal appeals court confirmed.
The US Court of Appeals for the Second Circuit on Tuesday issued an opinion supporting an earlier federal court ruling that as long as Donald Trump is a public official, he cannot block people (which prevents them from reading his feed or responding to his comments) he disagrees with on Twitter.
The opinion (PDF) is narrow, specific, and unanimous, with all three judges concurring. “We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account,” the judges write, “Nor do we consider whether private social media companies are bound by the First Amendment when policing their platforms.”
But, they continue, “The 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…. Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”
“The irony of all this,” the opinion concludes, “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-open, 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 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.”
The group of Twitter users, along with the Knight First Amendment Institute at Columbia University, filed the initial lawsuit almost exactly two years ago, in July 2017.
The suit claimed that, as Trump’s Twitter feed is a public forum in which the president posts official statements of policy, blocking the plaintiffs for making critical comments amounted to a violation of their First Amendment rights.
Federal Judge Naomi Buchwald agreed, issuing a ruling for the plaintiffs in 2018 that concluded the “interactive space for replies and retweets” connected to each Trump tweet qualified as a public forum for First Amendment considerations.
A judge in Virginia ruled in 2017 that, while local politicians could moderate comments to their social media pages, the pages themselves operated as “a forum for speech under the First Amendment,” and blocking users for sharing critical opinions was not permissible.
The governor of Maryland settled a similar lawsuit in 2018, which required him to adopt a new social media policy that permitted users to comment on “any past topic he has covered” and retain comments that were deleted by moderators for one year to give users time to appeal the removal.