We won our First Amendment lawsuit against President Trump


Federal judge Naomi Reice Buchwald ruled yesterday that the president is violating our First Amendment rights when he blocked me and six other plaintiffs for disagreeing with him on Twitter. The details and decision are available here. Congratulations and deep appreciation to the legal team at the Knight First Amendment Institute, especially Katie Fallow, Jameel Jaffer, Alex Abdo, and Carrie DeCell (sorry for those I’m missing).

I described my participation in the suit and my tweets last year here, and the oral arguments in March here.

Judge Buchwald’s introduction to the decision is great:

This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.

She went on to issue declaratory relief, meaning she told the president he’s breaking the law, rather than injunctive relief (an order to act), writing:

It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and [social media director Dan] Scavino will remedy the blocking we have held to be unconstitutional.

That remains to be seen, of course (I’m still blocked at this writing).

Here are a couple of snippets of analysis.

From Wired:

“In an age when we’re seeing so many norms broken by government regarding free speech, this is an important and right decision,” says [Danielle Citron, a law professor at the University of Maryland]. “It sends a message that we’re not going to destroy free speech norms.”

[David Greene, a senior staff attorney and civil liberties director at the Electronic Frontier Foundation] says he hopes the ruling warns other elected officials who are blocking constituents on social media to stop. “We routinely get a ton of people complaining to us about similar practices,” he says. “I hope they take it as a message that you have to stop doing this.”

From the Mercury News:

“The First Amendment prohibits government officials from suppressing speech on the basis of viewpoint,” said Katie Fallow, senior staff attorney at the institute, in a statement Wednesday. “The court’s application of that principle here should guide all of the public officials who are communicating with their constituents through social media.”

Erwin Chemerinsky, dean of Berkeley Law at UC Berkeley, agrees.

“The judge followed clear law: A government official cannot give selective access of this sort,” Chereminsky said.

From the San Francisco Chronicle:

Knight staff attorney Carrie DeCell said the organization was pleased with the decision, but expects the White House to appeal. “Twitter is a new communications platform, but First Amendment principles are foundations,” DeCell said. “Public discourse is increasingly taking place online.”

DeCell said the case could have implications for all public officials using social media — not just Trump’s account. “The reasoning in the court decisions, we think, should inform public officials’ activities on our social media pages throughout the country,” she said.

My co-plaintiffs have also written on the decision. See Rebecca Pilar Buckwalter Poza in Daily Kos:

Public officials are relying on social media more and more to communicate to constituents. As that shift accelerates, it’s imperative that courts recognize that the First Amendment protects against viewpoint discrimination in digital public forums like the @realdonaldtrump account just as it does in more traditional town halls. An official’s Twitter account is often the central forum for direct political debate with and among constituents, a tenet of democracy.

and Holly Figueroa O’Reilly in the Guardian:

Twitter is as public a forum as a town hall meeting. By blocking people who disagree with him, he’s not only blocking our right to petition our government and access important information, but he distorts that public forum by purging critical voices. It’s like a senator throwing someone out of a town hall because they held up a “disagree” sign.

The New York Times also did a piece on other people Trump blocked (the public doesn’t know how many such people there are), one of whom called the decision “incredibly vindicating.”

I agree. The decision is a breath of democracy fresh air.

23 thoughts on “We won our First Amendment lawsuit against President Trump

    1. Good question. The decision goes against both Trump and his social media director, Dan Scavino. Scavino can be more easily compelled to do things, and he has access to the account. The whole jurisdiction issue is complicated and I can’t predict it!


      1. Which is a sneaky way to say that you might block me in fact? Doesn’t this make you the quintessential hypocrite? Denying someone else a right you don’t want to be denied? How do you live with yourself? Wouldn’t only a seriously confused person or someone of questionable morality act like this?


          1. Love your condescending response! Did you pick it up in Academia? You just can’t help yourself, can you? Where all opinions opposing your (obviously) liberal worldview are to be sneered at… You understand now why Trump won? And why he will win again in 2020? Thanks to the likes of you! So thank you! Keep up the leftist arrogance! It’s been very helpful. It has taken some time but after Obama’s 8 years folks have finally been figuring you out.


          2. “You understand now why Trump won? And why he will win again in 2020? Thanks to the likes of you! So thank you! Keep up the leftist arrogance!”

            I can never get over the worldview that says the more wrong you are the better, because it shows you are against people you hate. Well, you’re wrong, and if that’s how you win, then that’s not really something to be proud of.


  1. Why are you moderating comments? How is it that you can choose to not publish comments (of dissenting nature) but you don’t believe the POTUS has that same right? Are you a Communist?


        1. Republic is a kind of democracy. For some reason Trump people love to talk about this. It’s irrelevant. You seem to have misread the story you linked. Palin’s child has Down Syndrome, not autism. The case in question was about a child with autism. The comment was irrelevant to the case, and it showed she dislikes Palin. Seems OK to me, though she should keep that out of the courtroom. Even more irrelevant than the republic thing, of course.


          1. Down Syndrom, right! But seems “ok” to you that this judge would make a vicious comment like this? Wow! I was actually a follower of your blog because I was interested in the whole family studies dynamic. Glad we had this exchange. It sure revealed a very different side of you, sir! For you to find the disgusting comment this judge made about Palin using her child as a prop, I find pathetic. But hey, keep digging deeper in the democracy studies and the filing of lawsuits against Trump. Sarcasm aside, that fits really well with your family expert public profile!


  2. First, congrats. Second, apparently your troll and Mr Trump are united in not understanding the that president is part of government and thus is subject to the first amendment in not restricting the free speech of others. Third, I am rather expecting the case to be appealed to the SCOTUS, which would probably allow Mr Trump to resist and continue his attempts to speak to his followers without the inconvenience of criticism. Perhaps our Constitutional crisis will be over is refusal to obey a court order around this decision?

    Liked by 1 person

    1. Hilarious that they tried to make a scandal out of Obama maybe blocking one account. I didn’t sue him in that case, because I wasn’t blocked so I wouldn’t have standing. However, I would support such a suit, of course.


  3. Twitter and Google with Youtube are both California based businesses, they are censoring many people’s free speech. California law states that all provately owned public forums are required to let free speech be unhindered. Yes, I understand private people may legally block, delete, and censor those that they wish. The California businesses by California law, however, can not hunder free speach as long as they are public forums. There needs to be a huge class action against these California based public forums for hindering people’s rights.


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