This post is by ELGL member Julie Tappendorf. Reprinted with permission.
Last summer, we reported on the federal lawsuit filed against President Trump by individuals who had been blocked from the President’s @realDonaldTrump Twitter account. You can read our post here.
Last week, the federal district court issued a ruling in this case declaring that the blocking of users from the President’s Twitter account violated the users’ First Amendment free speech rights. Knight First Amendment Institute et al. v. Trump.
The court’s analysis is interesting because there are very few cases that discuss the interaction of the First Amendment with social media. It’s also lengthy (75 pages), so I’ve condensed what I believe are the important points of the court’s analysis in the following summary.
Twitter Users Engaged in Protected Speech
First, the court considered whether the plaintiffs (the blocked users) had engaged in speech protected by the First Amendment. The court concluded that they had because the users sought to engage in political speech critical of the President, and speech on “matters of public concern” is protected by the First Amendment.
@realDonaldTrump Account is Controlled by the Government
Second, the court looked at whether the space where the users were preventing from engaging in protected speech was a public forum for purposes of the First Amendment. That issue turned on whether the space in question is “owned or controlled by the government.”
The court acknowledged that Twitter is a private company that is not government-owned, the control exercised by President Trump over the @realDonaldTrump account was governmental in nature, based on the following factors:
- The account is presented as being “registered to Donald J. Trump, 45th President of the United States of America.”
- The President’s tweets are official records that must be preserved under the Presidential Records Act.
- The account has been used in the course of a number of official acts, including the appointment of officers, the removal of officers, and the conduct of foreign policy.
- The President presents the account as being a presidential account rather than a personal account.
- The President has used the account to communicate and interact with the public about his administration.
- White House aides, including co-defendant Daniel Scavino, White House Social Media Director and Assistant to the President, had access to the account and drafted, posted, and assisted the President with content for tweets on the account.
Public Official’s Purely Personal Account Treated Differently
The court acknowledged the distinction between a personal Twitter account and governmental official account, noting that a public official’s blocking of a user from a purely personal Twitter Account would not implicate a First Amendment forum analysis.
But, in this case, the court determined that the nature of the control over the @realDonaldTrump account by the President and his staff was governmental in nature.
Interactive Space of President’s Twitter Account is a Designated Public Forum
Third, the court examined whether the public forum was a traditional, designated, or non-public forum under the First Amendment. The court rejected any argument that it was traditional, finding no basis for finding the interactive space of the President’s Twitter account to be historically used for public speech and debate.
However, the court did find the forum to be a designated public forum, meaning that “viewpoint discrimination” is presumed to be impermissible. Based on the facts (which were agreed to by all parties), the court determined that the plaintiffs (the blocked users) were “indisputably blocked as a result of viewpoint discrimination.”
Specifically, the court found that they were blocked because they criticized the President or his policies, an allegation that was not contested by the President.
President’s First Amendment Rights Not Implicated
Finally, the court rejected the President’s argument that his First Amendment rights would be violated if he could not choose the people he associates with on Twitter. Although the court acknowledged that public officials do not lose their First Amendment rights when they take office, they do not have the right to exclude critical speakers from expressing their opinions – in this case, by blocking those users from his Twitter account.
The court did seem to suggest that a public official could “mute” a Twitter user, comparing that to “ignoring” a speaker who the official does not want to engage with. However, the act by a public official of “blocking” users as a result of the political views they have expressed is not allowed under the First Amendment where the speech is protected and the area in which the speech takes place is a public forum protected by the First Amendment.
In short, the court found that the President’s blocking of Twitter users violated their First Amendment rights. The court did not order the President to “unblock” the users, instead choosing to simply declare the conduct as unconstitutional and leaving it to the President to “remedy the blocking we have held to be unconstitutional.”
So, what is the takeaway for public officials?
Your personal social media accounts should not be subject to First Amendment protections so long as they are used solely for personal, and not governmental, communications. However, to the extent that your social media account is used to communicate about your government position and activities and/or holds itself out as being an official account, it might be subject to the same analysis as President Trump’s Twitter account.
That means you should be cautious about engaging in viewpoint discrimination (i.e., blocking, deleting, or otherwise censoring or punishing other users based on the content of their message).