President Trump Violated the First Amendment by Blocking Users @realdonaldtrump

This is a lawsuit brought by Twitter users and the Knight Foundation against President Trump (and his social media strategist and press secretary). The lawsuit alleges that the President violates plaintiffs’ First Amendment rights by blocking them on Twitter. The court agrees says that the First Amendment prohibits politicians from blocking users on account of their views. However, the court says that “muting” a user does not raise the same concerns.

The parties stipulated to the relevant facts, and the court’s ruling is on summary judgment. The court reviews the mechanics of Twitter in detail, including the experience of a blocked user. The court also looks at the history of the @realdonaldtrump account: the fact that it was initially a personal account, and now is used to conduct official business, including for nominations and firings. Indeed, the National Archives says that tweets from this account are “official records” that must be archived.

The court says initially that plaintiffs seek to engage in protected–indeed, core–First Amendment speech (political speech). The court then turns to the forum classification doctrine to analyze the type of forum at issue, and says delineating the putative forum is an important and difficult question. The @realdonaldtrump account “as a whole” is not the would-be forum. Rather:

[the court considers] whether the forum doctrine can be applied to several aspects of the @realdonaldtrump account . . . : the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those speech, and the “interactive space” associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet.

Specifically, the court analyzes two issues: (1) whether the government controls the space in question, and (2) the purpose and character of the forum.

Does the President own or control the space in question?: The answer to this is yes. Although Twitter is a private entity, the President and his Twitter aide exert control over various aspects of the account, including the ability of users to interact with and comment on tweets:

While their control does not extend to the content of a retweet or reply when made — “[n]o other Twitter user can alter the content of any retweet or reply, either before or after it is posted” and a user “cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts,” . . .  it nonetheless extends to controlling who has the power to retweet or reply in the first instance.

Defendants argued that blocking is not state action because it simply utilizes functionality made available to every Twitter user. The court rejects this argument, saying that, to the extent the space is a forum, then all of the government’s acts are subject to scrutiny.

This control does not extend to comment threads that even blocked users can participate in, so this part of the space relating to an official Twitter account is not a forum.

What is the purpose and structure of the forum?: The forum analysis requires examination of the purpose and character of the space in question. The court says that the tweets themselves are government speech and not a part of the forum. The same is the case with the timeline (i.e., who the account follows and what content it displays). However:

the same cannot be said . . . of the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump account. At minimum, as to replies, they are most directly associated with the replying user rather than the sender of the tweet being replied to: a reply tweet appears with the picture, name, and handle of the replying user, and appears most prominently in the timeline of the replying user. Replying tweets are “controlled by the user who generates them,” and “[n]o other Twitter user can alter the content of any . . . reply, either before or after it is posted.”

A reply is not government speech. “Nor is the interactive space of each tweet, as distinguished from the content of the tweet . . . .”

What type of forum is it?:  The court says it’s not a traditional forum (i.e., something that for time immemorial has been dedicated to public use for speech purposes). However, the court says because it’s made generally accessible without any limiting criteria, it’s a designated public forum. Along with a traditional public forum, a designated public forum is the broadest possible categorization where the public has the greatest right of access.

Is the President engaged in viewpoint discrimination?: It was all but conceded that the President blocked users who criticized his policies. Viewpoint discrimination (as repeatedly reiterated by the Supreme Court, including most forcefully in the Tam decision) is always impermissible. The court looks to the two types of limiting actions a user can take with respect to another user: muting and blocking.

The former is not constitutionally objectionable. While you have a right to make your views heard, the government has no obligation to listen. And muting does not affect your ability to participate in the interactive space associated with the muting user’s account:

the muted account may still reply directly to the muting account, even if that reply is ultimately ignored.

However, blocking is different. Blocking prevents the blocked user from seeing or replying to the blocking user’s tweet. The President argued that muting and blocking were equivalent means of restricting engagement:

Implicit in this argument is the assumption that a reply to a tweet is directed only at the user who sent the tweet being replied to. Were that so, defendants would be correct in that there is no difference between the inability to send a direct reply (as with blocking) and the inability to have that direct reply heard by the sender of the initial tweet being responded to (as with muting). But this assumption is not supported in the record: a reply is visible to others, and may itself be replied to by other users. The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one. [emphasis added]

The court finally says that while the effect on plaintiffs may be minimal, the First Amendment guards against even those minimal harms.

Finally, the court declines to grant an injunction. Instead, the court grants declaratory relief and takes comfort in the assumption that the President and his aides will abide by the court’s “authoritative determination” of the constitutional propriety of their actions.

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This is a high profile dispute that takes a detailed look at the constitutionality of social media blocks by politicians. The court takes a careful look at the mechanics of Twitter. No one can accuse the court of being ignorant of the platform. The court’s forum analysis is equally nuanced. Rather than look at comments as a whole, or (as with some of the Facebook cases) the effect of banning, the court looks at discrete aspects of Twitter functionality as it relates to banned and muted users.

The two central First Amendment conclusions are reassuring:

  • participation in the discussion regarding the social media statements of politicians implicates the First Amendment (a blocked user is not just speaking to the blocking user but the audience of the blocking user; third parties, such as the Knight Foundation, have an interest in reading replies that blocked users would otherwise post in response to @realdonaldtrump’s tweets);
  • because blocking meaningfully restricts a follower’s ability to engage, blocking a user in response to their viewpoint is inconsistent with the First Amendment.

It’s worth noting that the court stopped short of saying the President cannot block users because users have the right to voice their opinions directly to the President. Or because of some sort of stigma associated with being blocked by the President. The court’s First Amendment analysis relies on the right of speakers to converse with one another (and with third parties who may wish to read their comments). This, along with the court’s decision that muting does not raise the same First Amendment concerns, makes this a somewhat measured ruling, perhaps designed to better withstand a challenge on appeal.

A big question the ruling raises is what the President (or future politicians) can do to avoid this type of a scenario. As an initial note, while the court does not issue an injunction, the court does challenge the President to disregard its ruling. This is a shrewd move that could set up a constitutional crisis over Presidential blocking, but allows the President to make the call. He can comply, which is of course, unlikely. If he ignores the ruling, the Second Circuit, where this will undoubtedly end up, is not going to be happy.

More broadly, the court’s discussion acknowledges that the character of a Twitter account can change over time, and perhaps the President can take steps to make his account less broadly accessible, or make it more personally focused? Can he lock the account? Can he limit it to his supporters? Can he ask users who wish to follow to fill out a questionnaire before being approved? (I still maintain that Twitter and other networks should have default rules for politicians that they cannot override. This would be in keeping with Twitter’s role as First Amendment champion.) I don’t think we have clear answers to those questions. We know that he can’t block people based on their viewpoints, but perhaps that still leaves him room to limit access in a non-viewpoint discriminatory way? The court notes that one of the challenges with the forum approach is that the government has relative freedom to simply close a forum. (Perhaps it’s an open question whether it may close the forum for discriminatory reasons, but generally speaking, courts recognize the right to shut down the forum.) Does this mean politicians can simply block everyone, thereby not allowing anyone to participate in the interactive space immediately surrounding their statements?

It’s always nice to see courts declare that no politician is above the law, even if the ruling comes in a case about something seemingly as trivial as blocking on social media.

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Eric’s Comments:

Let’s recap what we’ve learned from this case:

1) President Donald Trump is a thin-skinned bully. He can dish it out, but he sure can’t take it. His Twitter account routinely spews the worst types of invective and ad hominen attacks against his perceived enemies, and every day he engages in blatant lying–often multiple times in a single tweet. But say something mean about him on Twitter, and he blocks the account? If he weren’t already 71 years old, I’d encourage him to grow up.

2) A federal judge has declared–in clear and unmistakable terms–that President Trump broke the law and violated the Constitution. Then again, it isn’t that surprising, because Trump appears to break U.S. law and violate the Constitution many times a day.

3) President Trump wasted taxpayer money defending his obviously illegal censorship. It’s even more galling because Trump could have just switched the blocks to mutes months ago and likely ended the case then, at a substantial savings to U.S. taxpayers.

4) As we know, Trump isn’t going to change his illegal ways, and the current Congress won’t hold him accountable. So the judiciary remains our well-functioning component of our federal government.

5) The court says: “no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.” Yet, how many of us believe Trump will honor this ruling and stop his illegal activity? That would be a first. It seems more likely he will set up a Constitutional crisis by flagrantly disregarding the ruling, and that will cost us even more taxpayer dollars–even though switching blocks to mutes would cost us nothing. He could also appeal this ruling, though I think the opinion is very well-constructed and should do well on appeal.

[NOTE: If you are a Trump supporter, I’m sure you have many incisive retorts to my critical remarks. My apologies, but this blog is not the right venue to debate the Trump presidency, so I will delete any comments to this post that attempt to do so (both for and against). I recognize the possible irony of that stance in light of this post’s topic, but some essential differences: I am not a government official, and I have not taken an oath to uphold the U.S. Constitution in the course of performing a job funded by taxpayers. FWIW, I promise this blog will continue to minimize political stances in future posts.]

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Noteworthy aspects of this case:

Privileging the listener’s right to receive. The court says: “the Knight Institute has sufficiently established an injury-in-fact: the infringement of its desire ‘to read comments that otherwise would have been posted by the blocked Plaintiffs . . . in direct reply to @realDonaldTrump tweets.'” Though not unprecedented, this is a major ruling. Courts often focus their Constitutional analyses on speakers’ rights to speak, not listeners’ rights to hear, but this court treats the right to receive as equally important. This opens up the door for more general complaints about how speech restrictions deprive listeners of content they wish to receive.

Governments using private-sector communication media. The court reaches the common-sense result that Twitter is not a state actor even though it provides  accounts to government actors–just like the telephone company isn’t a state actor even though it provides services to government customers, or a newspaper isn’t a state actor even though it publishes content authored by the government. The court’s opinion reinforces Packingham’s celebration of the importance of access to social media, without implying that Packingham somehow restricts Twitter’s discretion to manage its private property.

When is a politician’s social media account “personal”? There was never any real doubt that @realdonaldtrump is being used for official government purposes since Trump has been in office. According to the stipulated facts, Trump (or Scavino) used the account:

to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels…

the @realDonaldTrump account is presented as being “registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” (2) “that the President’s tweets from @realDonaldTrump . . . are official records that must be preserved under the Presidential Records Act,” and (3) that the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy — all of which are squarely executive functions….the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President.

So this was an easy case for categorizing @realDonaldTrump as an official government account. Future cases won’t necessarily be as easy, because only the laziest and most self-absorbed politicians think they are actually performing their job by firing off official pronouncements by tweets.

The court defines a “purely personal Twitter account” as “one that she does not impress with the trappings of her office and does not use to exercise the authority of her position.” Many politicians routinely use their social media accounts to laud themselves for their brilliant deeds, skewer political opponents, take political positions, and otherwise advance their political objectives. The court’s opinion seems to apply to all social media accounts used for those purposes. Arguably, including the politician’s job title in the account description might be enough to “impress with the trappings of her office.”

The court indicates that a social media account can start out as a non-government account, evolve into a government operated account when the owner works for the government and uses it for government purposes, and presumably go back to being a non-government account when the person leaves government work (or, theoretically, stops using the account for government purposes even though still in office). Given how irresistible it is for politicians to talk about their political work on social media, I expect most social media accounts will be deemed government-operated accounts so long as the owner works for the government.

This also raises an interesting question not addressed by this opinion: if the owner blocked someone while the account was non-government, must that person become unblocked when the account is a government-operated account? Because the blocking will deprive the blocked user of their free speech rights (and listeners of their rights to receive), the block would need some strong legal justification to keep it in place.

Will this ruling extend to other government officials? Politicians regularly block users–including their constituents–on social media. See, e.g., Governors and Federal Agencies Are Blocking Nearly 1,300 Accounts on Facebook and Twitter, ProPublica, Dec. 8, 2017. This well-reasoned and detailed opinion casts significant doubt on all of those practices. It’s distressing that so many government employees working for the taxpayers have routinely chosen to censor their constituents. I hope this ruling begins the end of such practices.

When can politicians block social media accounts in the future? The stipulated facts indicated that “the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” Kudos to President Trump for a virtually unprecedented moment of truth-telling, but it made this case super-easy to peg as outright censorship of unwanted political views.

What will happen in the future when a government official claims to block Twitter users because their comments are problematic? For example, perhaps the comments are defamatory, or they are so invective-filled (like most of Trump’s posts) and abusive, or they otherwise disrupt the conversation. In those cases, it would make sense to delete the problematic comments without banning the user outright, but Twitter doesn’t provide accountholders the functionality to delete third party responses. So can government officials manufacture reasons, even if pretextual, to block Twitter accounts they don’t like and reach the same result?

In contrast, Facebook does allow the deletion of individual comments. It would impose less burden on the First Amendment for government officials to delete offending comments rather than categorically blocking users. I think such comment deletions are permissible under the court’s categorization of the discussion spaces as designated/limited public forums, but only when the comment deletions have appropriate legal bases. If so, the more nuclear option of blocking users entirely should be extremely limited, and perhaps account blocks by government-operated accounts are categorically illegal.

The court implies that muting social media accounts is perfectly fine. I can see why that would make sense for individual politicians. However, I would feel differently when the account is run by a government agency. Muting a constituent may hinder that person’s right to petition the government, especially if the agency limits the ways it responds to constituent requests. The court sidesteps the petitioning issue (see FN 24), but government actors would be wise to tread cautiously before muting users.

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BONUS: In a less heralded ruling the day after the Trump ruling, a federal court in California held:

Defendants Michelle O’Connor-Ratcliff, and T.J. Zane are members of the Poway Unified School District’s (“PUSD”) governing board. Plaintiffs allege that both Defendants use their Facebook accounts, and O’Connor-Ratcliff also uses her Twitter account, to disseminate information in their official capacities about PUSD matters and to allow members of the public to post comments. After Plaintiff Christopher Garnier posted comments criticizing Defendants concerning PUSD matters, he was blocked by Defendants from posting further comments on their Facebook accounts, and from O’Connor-Ratcliff’s Twitter account. Similarly, Plaintiff Kimberly Garnier was blocked from posting comments on O’Connor-Ratcliff’s Facebook account after she posted comments criticizing O’Connor-Ratcliff….

Based on these allegations, and at this stage in the litigation, it is reasonable to infer that Defendants, like the Chairperson in Davison, used their private social media accounts as a tool for governance. Accordingly, the Court finds the Complaint adequately alleges Defendants acted under color of law when they blocked Plaintiffs from posting messages on their Facebook and Twitter accounts.

Garnier v. Poway Unified School District, 2018 WL 2357151 (S.D. Cal. May 24, 2018)

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Case citation: Knight First Amendment Institute v. Trump, 2018 WL 2327290 (S.D.N.Y. May 23, 2018) [pdf]

Related posts:

Kentucky Governor Can Block Constituents on Social Media–Morgan v. Bevin

Politician Can’t Ban Constituent From Her Official Facebook Page–Davison v. Loudoun County Supervisors

County Attorney’s Deletion of Constituent’s Facebook Comment May Violate First Amendment

City Can’t Use Copyright To Censor Critical Videos–Inglewood v. Teixeira

Blogger Can Display County Seal in Blog Posts–Rothamel v. Fluvanna County

First Amendment Precludes Disorderly Conduct Conviction for Ranting on Police Department Facebook Page

Demoting Police Officer for Posting Confederate Flag to Facebook Isn’t First Amendment Violation

Police Officers Lean on School to Fire Social Worker for Facebook Post–and May Have Violated First Amendment

The First Amendment Protects Facebook “Likes” – Bland v. Roberts

Facebook “Likes” Aren’t Speech Protected By the First Amendment–Bland v. Roberts