By David A. Linehan
A recent decision from a federal appeals court addresses a thorny question of First Amendment law: May the President of the United States block Twitter users who tweet critical or insulting messages to him? Or does the act of blocking constitute unlawful viewpoint discrimination in a public forum?
In Knight First Amendment Institute v. Trump, a three-judge panel of the United States Court of Appeals for the Second Circuit held that President Trump violated the First Amendment when he blocked certain Twitter users from interacting with his Twitter account because they expressed views he disliked. The Second Circuit agreed with the trial court that the “interactive space” associated with President Trump’s Twitter account had become a public forum by virtue of Trump’s extensive use of Twitter to communicate official actions and policies. Therefore, excluding members of the public from accessing that space was an act of unconstitutional viewpoint-based discrimination.
The Second Circuit based its decision on two findings that were hotly contested in court: (1) that President Trump’s Twitter account (@realDonaldTrump) constitutes an official, government-controlled “public forum” to which the First Amendment applies, rather than a private vehicle for his personal speech; and (2) that his blocking disagreeable users constituted an official act of exclusion from the public forum on viewpoint-discriminatory grounds.
The President conceded that he blocked the plaintiffs because they posted tweets that criticized him or his policies. He also conceded that the plaintiffs’ tweets were protected speech. But the President argued that the act of blocking did not constitute “state action”—which is a prerequisite to finding a First Amendment violation. The First Amendment does not prohibit viewpoint discrimination by private actors, only by state actors exercising their official authority. The President argued that he was acting in his private capacity when blocking user accounts that were sending insulting or critical replies to his tweets. He also argued that his @realDonaldTrump account is private property, not a public forum, even though he sometimes uses it to publicize his presidential agenda and official policies.
The Second Circuit disagreed, concluding 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.” As such, the three-judge panel affirmed the trial court’s finding that the President violated the First Amendment, and therefore affirmed the injunction to “unblock” the plaintiffs from accessing his Twitter account.
The President also argued, alternatively, that posts on @realDonaldTrump were government speech to which the First Amendment does not apply. The Second Circuit rejected this argument, as well, stating that the First Amendment issue here is not the content of the President’s own tweets, but the ability of the public to respond with their own private speech in the “interactive space” below his tweets. In other words, the reply, retweet, and “like” functions are interactive features of a “public forum,” and the President may not censor or bar individuals from accessing those interactive spaces based on the content of their messages.
Following the decision of the three-judge panel, the Second Circuit denied Trump’s request for rehearing by the full appeals court. However, two of the judges issued a strongly worded dissent from the denial of rehearing, arguing that the panel opinion had improperly expanded the concept of a “public forum” in novel ways and failed to adhere to long-standing precedents concerning “state action” versus private conduct.
The dissenters noted that the @realDonaldTrump account was created by Trump for his personal use in 2009—more than 7 years before he became President—and that it should not be viewed as having been automatically converted to an official government account or public forum merely because he sometimes uses it to communicate his official acts or policy positions (as contrasted with the official @POTUS and @WhiteHouse accounts, which are always controlled by the sitting President). The panel opinion did not provide a test for determining when the account became a public forum; it simply concluded that the @realDonaldTrump account had at some point become an official government account, citing to multiple examples of tweets since 2017 wherein the President had announced official actions or policy positions. (The White House press secretary had stated in June 2017 that tweets should be viewed as official statements by the President.)
The dissenters also disputed whether Trump’s act of blocking the plaintiffs constituted state action, which is a traditional prerequisite for finding a First Amendment violation. They argued that the act of blocking was not an exercise of a presidential power or privilege created by federal law; indeed, all Twitter users have the power to block other users. The dissenters also noted that it is now commonplace for politicians to use personal social media accounts “to promote their official activities,” and expressed concern that the panel opinion would “have the unintended consequence” of ensuring that “the social-media pages of public officials are overrun with harassment, trolling, and hate speech, which officials will be powerless to filter.” In the dissenters’ view, this could discourage public officials from communicating with their constituents through social media at all.
How will this case affect the social media activity of local government officials such as city councilmembers, mayors, and county commissioners? Do the same principles apply? In a word, yes. Although the First Amendment originally was meant to preclude only the federal government from infringing on the fundamental rights of free expression and religious exercise (among others), the Supreme Court long ago ruled that the protections of the First Amendment are also incorporated into the Due Process Clause of the Fourteenth Amendment, which explicitly constrains the actions of state and local governments.
Accordingly, under the Second Circuit’s opinion in Knight First Amendment Institute v. Trump, it is clear that when a local government official uses a social media account for a wide range of official purposes and blocks a user simply for expressing views or posting messages with which the official disagrees, a violation of the First Amendment has likely occurred and the blocked user may sue for an injunction.
Notably, on August 20, 2020, the Trump administration filed a petition for a writ of certiorari in the United States Supreme Court, seeking reversal of the Second Circuit’s panel opinion. The petition frames the key issue as: “Whether the First Amendment deprives a government official of his right to control his personal Twitter account by blocking third-party accounts if he uses that personal account in part to announce official actions and policies.”
We will be watching closely this fall to see whether the Supreme Court takes the case. In the meantime, the Second Circuit’s opinion raises difficult questions concerning when a government actor’s private account should be treated as an official account. The Second Circuit opinion does not lay out a test for answering this question. Nor does it tell us whether any use of a social media account as a vehicle to announce a government action or policy necessarily means that blocking a user from that account constitutes state action. Likewise, the opinion expressly takes no position on the question of whether an elected official violates the Constitution by blocking persons from accessing a wholly private social media account. Similarly, it is unclear whether a public official would have to unblock all the accounts that he or she blocked before taking office. And finally, we do not have a clear theory explaining how a First Amendment-protected public forum can arise on a privately owned social media platform, such as Twitter, that maintains full control over the terms of use and access to its services.
We will have to await further guidance from the courts on these and many other thorny issues. If you are a government official and have questions about your agency's social media policies or social media usage, or if you have other questions regarding the First Amendment, please contact David Linehan at Madrona Law Group to see if we can help at David@MadronaLaw.com or (425) 201-5111, ext. 2.