by Ed DeCecco
What do the President of the United States, a county supervisor from Virginia, three Wisconsin legislators, an Arizona congressperson, and the governors of Maryland, Maine, and Kentucky all have in common? If you said they are all elected public officials who were sued because they blocked people from their social media accounts, then you are either a really good guesser or a connoisseur of First Amendment social media jurisprudence. If you are in the latter category, then you can probably save yourself the trouble of reading further. But for the rest of you, this two-part article describes some recent trial court decisions in this area.
Knight First Amendment Inst. at Columbia Univ. v. Trump[1]
In 2009, Donald Trump created his @realDonaldTrump account, which prior to his inauguration he used for tweets about whatever caught his fancy, including politics. Since his inauguration, President Trump, with the assistance of White House Social Media Director Daniel Scavino, has used his account:[2]
- To announce, describe, and defend his policies;
- To promote his administration’s legislative agenda;
- To announce official decisions;
- To engage with foreign political leaders;
- To publicize state visits;
- To challenge media organizations whose coverage of his Administration he believes to be unfair; and
- For other matters, including occasional statements unrelated to official government business.
Six individuals did not like some of the president’s tweets and let him know by responsively tweeting messages critical of the president or his policies. Consequently, their accounts were blocked from @realDonaldTrump, which means they could not view tweets from that account, directly reply to the tweets, or view threads associated with the president’s tweets from their accounts. The Knight First Amendment Institute at Columbia University was not blocked, but it was deprived of the opportunity to read the reply posts that otherwise would have been tweeted by these individuals and others.[3] Thus, six individuals and the Institute sued President Trump, Mr. Scavino, Sean Spicer (who was replaced by Sarah Huckabee Sanders when she assumed his White House position), and Hope Hicks in federal court alleging that the Twitter block violated their First Amendment rights. The trial court agreed.
After determining that the plaintiffs could sue Mr. Scavino and the President of the United States, the court then “turn[ed] to the First Amendment’s application to the distinctly twenty-first century medium of Twitter.”[4] First, the court determined that the individual plaintiffs sought to engage in political speech, which is at the core of First Amendment protection, and it was not language excluded from First Amendment protections, such as obscenity, defamation, or fraud. Therefore, the speech at issue was protected speech.
Having determined that there was protected speech, the court next turned to whether the there was a public forum for speech on Twitter. Plaintiffs did not want to actually access the @realDonaldTrump account—to tweet from the account, receive his notifications, etc.—but rather sought access to the content of the tweets, the timeline comprised of the tweets, and the “interactive space” associated with each tweet (replies, retweets, and likes related to tweets). Even though Twitter is not government-owned, the manner in which the president controlled these three elements was sufficient to potentially qualify them as a public forum for purposes of the First Amendment.
There is a well-accepted principle that when the government speaks on its own behalf, First Amendment protections do not apply. As the Supreme Court stated, “The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.”[5] In this case, the court acknowledged that the @realDonaldTrump tweets are solely the speech of the president or others in his administration, and, as such, the content of those tweets, along with the related timeline, was government speech.
In contrast, the interactive space created by each of the president’s tweets is not controlled by, nor closely identified with, the government, and therefore, it was not government speech exempt from the First Amendment. Instead, for purposes of the First Amendment forum analysis, the space was a designated public forum, which exists because the government has acted intentionally to create a forum in a space that is not a traditional public forum (streets, sidewalks, and parks). In the case of the president’s twitter account, the factors that led to the inference of governmental intent to create a public forum included:
- The @realDonaldTrump account is generally accessible to the public at large without limitation, and each member of the public could generally participate in the interactive space, unless he or she has been blocked);
- The account was “held out … as a means through which the President communicates directly with you, the American people!”[6]; and
- Twitter is compatible with expressive activity; the platform is designed for users to interact with one another in relation to their tweets, and users can petition their elected officials or otherwise directly engage with them.
Within this designated public forum, the record indisputably established that the plaintiffs were blocked as a result of viewpoint discrimination—plaintiffs criticized President Trump or his policies and were then blocked. Viewpoint discrimination is impermissible under any type of First Amendment forum analysis. Nonetheless, the president argued that the block was permissible because he retains a personal First Amendment interest in choosing with whom he associates and because he is free to ignore the plaintiffs.
The court recognized the legal principles underlying the president’s argument but thought he did more than ignore them. Instead of muting the plaintiffs, which would have allowed him to ignore the accounts that he did not wish to engage, he blocked the accounts. And blocking the accounts deprived the plaintiffs of the ability to interact with the rest of the @realDonaldTrump audience. As such, the court found, “[w]hile 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.”[7]
Finally, the court acknowledged that the injury to the plaintiffs was relatively minor given that they still had limited access to the president’s tweets and could tweet replies to earlier replies to the president’s tweets. Nonetheless, the inability to directly interact with the president’s tweets was significant enough of an injury to violate the constitution, and warrant declaratory relief against the president. After the decision, the president unblocked the seven plaintiffs. He did not, however, unblock all the accounts he blocked, and he has indicated that he intends to appeal the decision.[8]
In part 2 of this article, I will describe two other recent trial court decisions where public officials were sued for blocking people on social media. In one case, the court had a similar conclusion as in the Trump case, but in the other, the court rejected the plaintiffs’ claims.
[1] As of the date of this article, the case was not selected for official publication, but is available on Lexis at Knight First Amendment Inst. at Columbia Univ. v. Trump, 2018 U.S. Dist. LEXIS 87432 (S.D.N.Y. 2018).
[2] These items were stipulated facts in the lawsuit.
[3] There were others. https://www.wired.com/story/donald-trump-twitter-blocked/
[4] Knight First Amendment Inst. at Columbia Univ., 2018 U.S. Dist. LEXIS 87432, p. 38.
[5] Pleasant Grove City v. Summum, 555 U.S. 460, 467 (2009).
[6] Knight First Amendment Inst. at Columbia Univ., 2018 U.S. Dist. LEXIS 87432, p. 64.
[7] Id. at 70.
[8] http://money.cnn.com/2018/06/05/media/trump-twitter-block/index.html