U.S. District Judge Naomi Reice Buchwald ruled Wednesday that President Trump may not block people on Twitter. Her decision opens:
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.
After concluding that the plaintiffs in the case have standing to sue President Trump and Dan Scavino, who also tweets from the @realDonaldTrump account, the judge moves on to the question of the First Amendment and how it applies to Twitter. She concludes that while Twitter is not “government-owned property,” Trump’s personal account is under government control.
Here, the government-control prong of the analysis is met. Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account…
Taking these factors together, we conclude that the interactive space of a tweet from the @realDonaldTrump account constitutes a designated public forum.
Having established this, the judge rules Trump’s use of the space is governed by the First Amendment which prevents viewpoint discrimination:
Defendants contend that the blocking of the individual plaintiffs is permissible because the President retains a personal First Amendment interest in choosing the people with whom he
associates and retains the right not to engage with (i.e., the right to ignore) the individual plaintiffs. Further, they argue, the individual plaintiffs have no right to be heard by a government audience and no right to have their views amplified by the government. While those propositions are accurate as statements they nonetheless do not render the blocking of the individual plaintiffs constitutionally permissible.
The judge goes on to suggest that muting certain people might be permissible but that blocking them based on content is not:
In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment…
To be sure, we do not suggest that the impact on the individual plaintiffs (and, by extension, on the Knight Institute) is of the highest magnitude. It is not. But the law is also clear: the First Amendment recognizes, and protects against, even de minimis harms.
I am not an attorney so I’m not rendering a judgment on the decision itself, I’ll leave that to others. But I don’t think one needs a law degree to see that while the decision only talks about these seven plaintiffs and Trump, it’s conclusions seem to extend to all government officials on Twitter and all government accounts too. All of that “interactive space” is now a public forum governed by the First Amendment even as the remainder of Twitter is not.
The judge’s ruling doesn’t seem to mention other social media sites, but wouldn’t the same conclusion be true on Facebook, Instagram, etc? Granted there are differences among those sites but the idea of government controlled accounts and “interactive space” is common to most of them.
I’ll update this post with reactions from some legal eagles if they become available.
Update: Okay, not a legal eagle but this is what I was talking about. Isn’t this unconstitutional now according to this decision:
My First Amendment Rights are being trampled. Official court ruling pic.twitter.com/8ZvITQZbI7
— Stephen Miller (@redsteeze) May 23, 2018