Ride the Lightning

Appeals Court Rules: Trump Can't Block Twitter Critics from His Twitter Account

July 10, 2019

The New York Times reported on July 9th that the U.S. Court of Appeals for the Second Circuit ruled unanimously that President Trump has been violating the Constitution by blocking people from following his Twitter account because they criticized or mocked him. The ruling could have broader implications for how the First Amendment applies to the social media era.

Because Mr. Trump uses Twitter to conduct government business, he cannot exclude some Americans from reading his posts — and engaging in conversations in the replies to them — because he does not like their views. Writing for the panel, Judge Barrington D. Parker noted that the conduct of the government and its officials are subject today to a “wide-open, robust debate” that “generates a level of passion and intensity the likes of which have rarely been seen.”

The First Amendment prohibits an official who uses a social media account for government purposes from excluding people from an “otherwise open online dialogue” because they say things the official disagrees with, he wrote.

“This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing,” Judge Parker wrote. “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.”

You can read the opinion here.

Mr. Trump’s Twitter account, @realDonaldTrump, has nearly 62 million followers, and he often uses it to make policy pronouncements and communicate with the public, driving the news of the day. His posts routinely generate tens of thousands of replies, as people respond to what he has said and engage in debates with each other.

A group of Twitter users whom Mr. Trump had blocked from accessing his postings, asked the White House to be unblocked and then, when their request went unheeded, sued him. The lawsuit argued that Mr. Trump’s account amounted to a public forum — a “digital town hall” — so his decision to selectively block people from participating in that forum because he did not like what they said amounted to unconstitutional discrimination based on their viewpoints.

Mr. Trump’s lawyers argued, among other things, that he operated the account merely in a personal capacity, and so had the right to block whomever he wanted for any reason — including because users annoyed him by criticizing or mocking him. But the appeals court disagreed, saying he was clearly acting in a government capacity in his use of Twitter.

“We are not persuaded,” Judge Parker wrote. “We conclude that the evidence of the official nature of the account is overwhelming. We also conclude that 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 ruling upheld a May 2018 decision by a Federal District Court judge that also found Mr. Trump’s practice of blocking his critics from his Twitter account to be unconstitutional. After that ruling, the White House unblocked the specific plaintiffs’ accounts — but not other users who were not involved in the case — while filing an appeal.

Glad to see this decision (and the rights conferred by the First Amendment) upheld!

Sharon D. Nelson, Esq., President, Sensei Enterprises, Inc.
3975 University Drive, Suite 225|Fairfax, VA 22030
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Digital Forensics/Cybersecurity/Information Technology
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