Federal Judge Finds First Amendment Violation in Presidential Blocking on Twitter

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In her Opinion in Knight First Amendment Institute v. Trump, United States District Judge for the Southern District of New York, Naomi Reice Buchwald, found that the President's Twitter account, @realdonaldtrump, is in violation of the First Amendment when it blocks other Twitter users based on their political views.

Judge Buchwald's 75 page opinion is well-structured and well-reasoned, proceeding through the multiple and complex issues posed by the novel issue. The parties' extensive Stipulation formed the basis of the summary judgment order.

Judge Buchwald first found that the named plaintiffs and organizational plaintiff had standing as to both the President and Dan Scavino, the White House Social Media Director with access to the Twitter account. But she granted summary judgment in favor of  Defendant Sarah Huckabee Sanders, who did not have access to the Twitter account (and Hope Hicks, no longer at the White House, was dismissed as a Defendant).

On the First Amendment issue, Judge Buchwald concluded that the Twitter account was governmental in nature as was the act of blocking other Twitter users. The judge rejected the argument that blocking was not state action because the blocking functionality was afforded every user: "but the power to exclude is also one afforded generally to every property owner. When a government acts to 'legally preserve the property under its control for the use to which it is dedicated,' it behaves 'like the private owner of property.'" She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now:

Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for governmental functions, the control they exercise over it is accordingly governmental in nature.

 Indeed, quoting from the parties' Stipulation, the Judge recounted:

With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, 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.” Stip. ¶ 38. “For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director.” Stip. ¶ 38.

 But the real issue for the forum analysis was not the President's tweets, which the Judge held to be "government speech" not subject to First Amendment constraints as the United States Supreme Court recently explained in Walker v. Texas Division, Sons of Confederate Veterans. 

Instead, the "interactive space associated with each of the President’s tweets is not government speech and is properly analyzed under the Supreme Court’s forum precedents," and, Judge Buchwald concluded, is a "designated public forum."

As such, the designated public forum is subject to the First Amendment requirement that any governmental restrictions must be "narrowly drawn to achieve a compelling state interest.”

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation 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.”

This viewpoint discrimination is impermissible, Judge Buchwald concluded, and not justified by any personal First Amendment right advanced by the President. Judge Buchwald distinguished "muting" and "blocking" on Twitter - - - which the President had argued were indistinguishable - - - and concluded:

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.

Finally, Judge Buchwald rejected the argument that the court categorically lacked authority to enjoin the President: "No government official, after all, possesses the discretion to act unconstitutionally." Nevertheless, she  decided that a declaratory judgment should suffice: "we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional."