“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).
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: