President Trump’s favorite social media platform, Twitter, allows him to talk directly with voters in a way his predecessors could only dream of.
What it doesn’t do is exempt him from the constitutional rules that applied to previous Oval Office occupants from Lyndon B. Johnson to Ronald Reagan, according to precedent-setting decisions from federal appeals courts this year.
Case law holds that the First Amendment bars government officials from closing spaces such as the White House briefing room to their critics. The same principle also applies to their behavior on digital platforms, according to the rulings from the 2nd Circuit Court of Appeals in New York this month and the 4th Circuit in Richmond, Virginia, in January.
The decision in Knight v. Trump, filed after the president blocked seven people from following his @realdonaldtrump account, “is a resounding victory for our plaintiffs and for the free speech principles at issue,” said Katie Fallow, a senior staff attorney with the Knight First Amendment Institute at Columbia University, which handled both challenges.
“When the government opens up a space it owns or controls and allows people to speak there, then the government cannot exclude people from that space based on viewpoints,” she told the Washington Examiner. The 2nd Circuit’s decision demonstrates that “the First Amendment rules of the road, which have been well established by the Supreme Court, apply equally to these virtual kinds of town halls.”
The decisions have implications not only for Trump, who has used his personal Twitter account to make unvarnished comments about policies, personnel, and foreign relations, but also federal, state, and local officials taking advantage of social media platforms to sidestep traditional filters in the news media.
The president set up his @realdonaldtrump account, which has more than 60 million followers, more than eight years before he gained public office, but he blurred the lines by billing it as belonging to the 45th president and using it for official comments, a three-judge panel of the 2nd Circuit found.
Those comments include announcing the dismissal of former White House chief of staff Reince Priebus and discussing North Korea’s development of nuclear weapons.
Trump’s Twitter account, which has three times as many followers as the White House’s official @POTUS account, “has become for better and for worse, maybe the most important communications channel for this particular administration,” said Jameel Jaffer, director of the Knight Center.
A lower court ruling in the center’s favor has already been cited in a number of similar cases. “It’s very gratifying to see other people starting to use that victory,” he noted.
The appeals court brushed aside Trump’s argument that despite the account’s high public profile, he was acting as a private citizen when he blocked the users. It’s a decision that may sharpen the president’s complaints about Twitter, where he posts prolifically but has also aired his grievances, as he also did in a private Oval Office meeting with Twitter CEO Jack Dorsey.
Last month, the president complained in a telephone interview with Fox Business anchor Maria Bartiromo that his Twitter following would be much larger but for the company’s hindrance.
Trump and his allies in Congress have also complained that Twitter and its social media rivals, based in Silicon Valley, employ liberal workers who conspire to suppress conservative views, a point GOP lawmakers have made in a series of congressional hearings.
Democrats have countered that the Constitution prohibits government regulation of free speech but doesn’t apply the same standard to individuals or businesses.
In Trump’s case, the use of an individual account for official purposes makes it indistinguishable from a government-created one, the court said. Trump himself has described his use of the @realdonaldtrump account as “modern day presidential,” the judges noted, and White House social media director Dan Scavino has called it a channel through which Trump talks directly to the American people.
“Because the president, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him,” the judges of the 2nd Circuit said. “The fact that any Twitter user can block another account does not mean that the president somehow becomes a private person when he does so,” the judges wrote.
The 4th Circuit applied the same standard when it determined that Loudoun County, Virginia, Board of Supervisors Chairwoman Phyllis Randall improperly blocked Brian Davison from a Facebook page she created to communicate with voters shortly before she took office in January 2016.
Davison claimed local school board members had conflicts of interest in financial transactions, and Randall’s temporary ban amounted to an effort “to suppress speech critical of such members’ conduct of their official duties,” the judges wrote. “Under long-established First Amendment law, governmental entities are ‘strictly limited’ in their ability to regulate private speech in public fora.”
CNN White House correspondent Jim Acosta made the same argument when he contested the revocation of his White House press pass after a sharp exchange with Trump over the president’s immigration policy following the 2018 midterms. He cited a ruling 50 years earlier from the Court of Appeals for the District of Columbia Circuit.
In that case, based on a claim from Robert Sherrill, a correspondent for The Nation, appellate judges ruled that President Lyndon B. Johnson’s administration couldn’t deny a press pass arbitrarily and must make clear the standards used in granting one.
In the decades since the 1966 case, governments constrained by such rulings have frequently argued that the same protections didn’t apply to newer forms of communication, a stance courts have generally rejected.
“Trump is my president: He is supposed to care about the views of all Americans, even those who disagree with him,” said Eugene Gu, a California physician and one of the blocked users.
Even though his Twitter following of about 280,000 is dwarfed by Trump’s, Gu found he could amplify his opinions by responding to, or commenting on, the president’s tweets.
“I found that I was able to be heard by many people and that my voice mattered even if I wasn’t a celebrity,” he said, “It felt like a national forum or city council meeting where the content of your speech mattered more than who you were. Then President Trump blocked me. It felt like I was being silenced and suppressed.”
Another of the plaintiffs, Seattle songwriter and organizer Holly Figueroa, said she was told repeatedly that she could open a new Twitter account and use it to follow the president but didn’t want to hide her identity.
“I’m on Twitter as myself, a person that others have come to know, whether it’s through the music I’ve worked on or my political commentary,” she said. “It’s hard not to take being blocked by the president personally. I may not be crazy about President Trump, but he is my president, and I want to know what he is saying.”
