Victory in the Second Circuit on Trump Twitter lawsuit

Clown imitates icon.

“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.”

— Barrington D. Parker, U.S. Court of Appeals for the Second Circuit

Yesterday the U.S. Court of Appeals for the Second Circuit decided in our favor in Knight Institute v. Trump, upholding the decision of from the U.S. District Court that President Trump violating the First Amendment by blocking me and six other plaintiffs on Twitter. The decision was unanimous among the three judges (two appointed by Republicans, one Democrat), who heard oral arguments in March (available in video here).

In ruling that Trump can't block people on Twitter, the 2nd Circuit said the First Amendment stands for the concept that "the best response to disfavored speech on matters of public concern is more speech, not less." We agree!

— EFF (@EFF) July 9, 2019

Here is some of the coverage.

• New York Times: “Trump Can’t Block Critics From His Twitter Account, Appeals Court Rules“
• Politico: “Judges: Trump violates First Amendment when he blocks Twitter critics“
• Washington Post: “President Trump cannot block his critics on Twitter, federal appeals court rules“
• Haaretz (Reuters): “Trump’s Blocking of Twitter Foes Is Unconstitutional, U.S. Appeals Court Rules“
• El País: “Trump ya no puede bloquear a sus críticos en Twitter“

More to come.

I was interviewed for a (paywalled) Times Higher Education article, “US university professor helps beat Trump on Twitter blocking,” saying:

“I often don’t read his tweets before replying. The point is not to have a dialogue with him, but to engage with the millions of people who read his tweets. … When I have a popular reply it can be viewed by 100,000 people or more, which, while small in the grand scheme, is very satisfying as an individual act of resistance.”

The article concludes:

But the professor acknowledged that some of his friends regard his approach as a waste of time, “playing into Trump’s hands, sinking to his level, fueling the outrage industry without advancing the cause of improving democracy through civil discourse. And honestly, they may be right,” he said. “We each have to respond in our own way to what, for many, is a deeply distressing turn of events.”

Much more important than my tweets is the effect of the case on the legal protections for democracy. I share the optimistic take by Jameel Jaffer, the executive director of the Knight Institute and the lawyer who delivered the oral argument in the Second Circuit:

“Public officials’ social media accounts are now among the most significant forums for discussion of government policy. This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”

(The whole team at the Knight Institute has been amazing and I’m deeply grateful.)

I also gave this interview to ABC News streaming show Briefing Room, and offered this summary off the cuff:

This is exactly what we were hoping for. Trump and the Department of Justice that’s representing him had argued that when Trump tweets, they acknowledge, that’s official business, but when he blocked people they said that was his personal preference and his personal behavior. And it’s really new territory because increasingly government official are communicating with the public on these private platforms, and we have to do some work to bring the First Amendment to bear in these environments. The principle here is that if the government, or a government official, establishes what’s called a public forum, then they can’t exclude people from that forum on the basis of their views. So Trump can have a private party, he can have a campaign rally, he doesn’t have to let every person in the world walk into the White House – but if he puts up a sign that says, “Public Debate Happening Here,” then he can’t say, “Oh, by the way, only Republicans can come.” And that’s what the court found he’s doing essentially with his Twitter feed when he blocks people, and creates this false impression that, you know, he has the biggest crowds and everybody loves him.

Here’s the clip:

The next step is to see whether Trump appeals, in which case he can either ask for a review by the full panel of the Second Circuit, or go up to the Supreme Court. We’re supposed to hear within 90 days.

The news office at Columbia, host of the Knight First Amendment Institute, which represents us, produced this short video on the decision:

Actually unblocked by Trump, as DOJ appeals ruling

We won our lawsuit on May 23, with a federal judge ruling that Trump blocking me and seven others violates the First Amendment. Now, as of June 4, I am actually unblocked by the president’s @realdonaldtrump account, as are the other plaintiffs. At the same time, the Department of Justice filed a notice of their intent to appeal the ruling to the United States Court of Appeals for the Second Circuit.

Meanwhile, an unknown number of other people remain blocked by the president. The Knight First Amendment Institute, which is representing us, has asked other people who are blocked to contact them at: info@knightcolumbia.org. I would love this case to end up extending to others blocked by Trump, and other public officials.

• See the Knight Institute for more info.
• The latest news was report by New York Times, Reuters, and Fox News, among others.
• The Trump lawsuit tag has the older posts.

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.

Trump Twitter suit argued in federal court

My showing how I’m blocked by Trump on Twitter. Photo by Miesha Miller.

With updates.

Yesterday in the U.S. District Court for the Southern District of New York, lawyers from the Knight First Amendment Institute and the Department of Justice argued the lawsuit against President Trump and his staff for blocking us on Twitter, in which I’m a plaintiff.

After the two-hour hearing, just like in Law and Order, the news media met us with cameras and microphones as we came down the stairs of the courthouse, and I realized I hadn’t prepared what I would say. The first questions focused on a suggestion by the judge that Trump should just mute his critics on Trump instead of blocking us. Was this the solution? I hadn’t had time to consider it carefully, and we haven’t received any kind of settlement offer. So I said this:

Honestly I don’t know if muting is really the solution. But if all they really care about, which they say, is that he just doesn’t want to hear from us, then he would mute, but obviously he wants to suppress our speech. Obviously he doesn’t want us to be participating in the forum. He wants to look out at the world on Twitter, and see that everybody agrees with him and everybody thinks he’s great – and the fact is that’s not true – and that’s why he blocks us. He literally blocks us so that we won’t be seen to be expressing our views against him, and I think that’s outrageous and I’m glad that it’s apparently illegal.

Here are a few media links.

Columbia Journalism Review: In downtown New York, a First Amendment fight over Trump’s tweets

“I never thought he would block me. I tweeted at him all the time,” Cohen told CJR outside court. He’d just watched attorneys from the Knight First Amendment Institute tell a federal judge that in blocking Cohen because he didn’t like his tweet, the president had engaged in unconstitutional discrimination based on viewpoint. The Knight Institute, which is based at Columbia University, is representing Cohen and six other plaintiffs—a surgeon, a comic, a musician-activist, two writers, and a police officer—in a bid to qualify Trump’s Twitter as a public forum; part of a broader push to protect the First Amendment from a president who clearly does not respect it.

New York Times:  Judge Floats Idea to Settle @realDonaldTrump Twitter Blocking Case

A federal judge in Manhattan had plenty of questions for lawyers representing a group of Twitter users who sued President Trump in July after he blocked them on the social media service. And she had even more for the government.

The seven users, who had been blocked by the @realDonaldTrump account after criticizing the president, were joined in the lawsuit by the Knight First Amendment Institute at Columbia University. Their lawyers claimed that Mr. Trump’s Twitter feed is an official government account and that blocking users from following it was a violation of their First Amendment rights.

Lawyers from the Department of Justice insisted that the Twitter feed was not, in fact, a public forum. Furthermore, they argued, no one had been meaningfully excluded from it.

Courthouse News, with the courthouse steps statements:

New York City Fox 5 news, with some followup interviews:

Agence France Press, published by Daily Mail: Twitter-blocked by Trump? Judge hears ‘free-speech’ case

Philip Cohen, a sociology professor at the University of Maryland, said he was summarily blocked in June 2017 after he reacted to a Trump tweet by replying with a photo of the president superimposed with the words “Corrupt Incompetent Authoritarian”.

“At first I was kind of proud, like ‘oh he cares about me,'” Cohen said.

“But then very quickly I realized that a lot fewer people were seeing my tweets and my political efficacy, my ability to speak to my fellow citizens, was impaired by that. And I think that’s not the way our government should act.”

New York: The Newest Frontier in Jurisprudence is Trump’s Twitter Feed

What’s private catharsis for the rest of us can be rightly seen as government retaliation when it’s a public official who goes on a blocking spree.

And a photo by Scott Matthews:

Photo by Scott Matthews.

These are just a few clips, mostly my scrap-booking for the day. I’ll write more later. Read all the case documents and statements, including those of the other plaintiffs, from the amazing Knight First Amendment Institute here.

See you in court, Mr. President (about that Twitter account blocking)

On June 7, I described how President Trump’s Twitter account blocked me, and the argument for why that violates the First Amendment. I can now report that the Knight First Amendment Institute at Columbia University has filed a lawsuit on my behalf demanding that the President unblock us. The other plaintiffs are Trump-blocked Twitter users as well: Rebecca Buckwalter, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas (the Knight Institute is also a plaintiff). The announcement is here.

This was the tweet I sent 15 minutes before discovering I was blocked by @realDonaldTrump:

Our argument is that the President created in his Twitter stream a “designated public forum,” and he can’t legally exclude people from that based on their political views.

Here’s my part of the story, as told to the Knight communications team:

I’m okay with the fact that the candidate I wanted lost the election. Our family was upset by the outcome, but I approached this like a civics lesson for the children: We told them that this is a democracy, and the next best thing to winning an election is using the democratic process to speak up. It is all of our responsibility to use the tools we have to engage in our democracy.

Social media are among the most effect tools I have to speak out. I have a blog and as a professor I publish academic writings, but Twitter gives me the broadest audience most immediately. For example, I’m delighted when I write a blog post that is read by a few thousand people. But because of my audience on Twitter, I can reach as many as 100,000 people with one of my tweets replying to the president. It’s true that there are some people who use the reply threads on Twitter just to trade insults, which may not be the most productive sort of conversation. But they also allow you to see a range of opinions of people who agree or disagree. Since I’m not a political commentator by profession, and I’m a parent, Twitter is the only way I can connect with that many people with just a few minutes of time every day (it helps that he and I seem to wake up at the same time in the morning so I can reply right away).

Being blocked by Trump diminished my ability to respond and engage in the political process. There has been measurable impact on my ability to be heard. Yes, I can still say what I want to say, but not to those I want to speak to, when I want to say it or in the way that means the most to me. It’s disempowering to be prohibited from speaking. And I’m troubled that the president can create a space on Twitter — where there are millions of people — that he can manipulate to give the impression that more people agree with him than actually do.

The complaint specifies:

Defendants’ blocking of Professor Cohen from the @realDonaldTrump account
prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.

If I complained about random citizens blocking me on Twitter, you could call me a whiner or a snowflake. But the President is not a random citizen, he is a public official — even, yes, my president — and complaining about him blocking me from his official public forum is not a personal beef, it’s a Constitutional obligation. That’s why we have a Constitution, and the court system to enforce it.

Here is the Knight Institute’s original letter demanding that he unblock his critics, sent prior to filing the suit. Attorney Alex Abdo has responded to some objections to their approach in this post. Here are the stories of the plaintiffs.

I’m happy to talk more about this, in coordination with the legal team. Wish us luck!