The Trump Twitter Case, and Its Implications for Other Public OfficialsJune 19, 2018 | Shari Claire Lewis |
In late May, District Judge Naomi Reice Buchwald of the Southern District of New York issued her decision in Knight First Amendment Institute at Columbia University v. Trump, No. 17 Civ. 5205 (NRB) (S.D.N.Y. May 23, 2018), granting summary judgment to the plaintiffs and holding that President Donald Trump and Daniel Scavino, the White House social media director, had violated the First Amendment by blocking various individuals’ access to the @realDonaldTrump Twitter account after the individuals criticized the president. The court’s narrowly focused, and fascinating, decision applies longstanding First Amendment doctrine to the distinctly 21st century medium of Twitter. Its analysis applies well-established principles of standing and free speech to the communication process that occurs through Twitter’s underlying technical functionality. As such, it has important implications not just for the parties to the action, but for other government officials with a presence on Twitter or other social media sites as well as for other members of the public.
The parties provided a detailed stipulation of facts to allow the court to focus on the legal issues underlying their cross-motions for summary judgment without any distracting factual dispute. As the court explained, Donald Trump established the @realDonaldTrump Twitter account in March 2009. Before his inauguration, he used this account to tweet about a variety of topics, including politics and popular culture. The Twitter page associated with the account presently is registered to Donald J. Trump, 45th President of the United States of America, Washington, D.C. Since his inauguration in January 2017, Trump has used the @realDonaldTrump account for, among other things, announcing his policies and official decisions and for matters unrelated to official government business. Scavino provides assistance regarding the content and administration of the account, including the ability to post tweets ostensibly in the president’s name and to control access to the account.
Seven Twitter users (collectively, the “blocked individuals”) each tweeted a message critical of the president or his policies in reply to a tweet from the @realDonaldTrump account. Each of these seven individuals had his or her Twitter account blocked by the president shortly thereafter. As long as they remained blocked, the blocked individuals could not view the president’s tweets, directly reply to these tweets, or use the @realDonaldTrump webpage to view the comment threads associated with the president’s tweets while logged in to their verified accounts.
However, as the court noted, that blocking did not completely eliminate the blocked individuals’ ability to interact with the president’s tweets because they still could view the replies to @realDonaldTrump tweets and could post replies to those replies while logged in to their blocked accounts. Replies-to-replies appear in the comment threads that originate with @realDonaldTrump tweets and are visible to users who have not blocked (or been blocked by) the blocked individuals.
The blocked individuals sued Trump and Scavino, among others, arguing that being blocked from @realDonaldTrump based on their political opinions was “viewpoint discrimination” that violated the First Amendment. The Knight First Amendment Institute at Columbia University, which had not been blocked, also was a plaintiff in the action. It asserted that it desired to read comments that otherwise would have been posted by the blocked individuals, and by other accounts blocked by @realDonaldTrump, in direct reply to @realDonaldTrump tweets, but that it was unable to do so because those accounts were blocked.
District Court’s Decision
The court granted summary judgment in favor of the plaintiffs.
The court first concluded that each individual plaintiff had established the required elements for standing, to wit, that as a result of being blocked, each had sustained an injury in fact that was traceable to the challenged conduct by the defendants and that could be redressed by a favorable decision. The court similarly found that the Knight Institute had standing. In so doing, the court depended on the U.S. Supreme Court’s decision on Spokeo v. Robins, 136 S.Ct. 1540 (2016), and continued the trend of recognizing the importance of online conduct in everyone’s life.
The court next focused on the primary issue disputed by the parties: whether a public official’s blocking of individuals on Twitter implicated a “forum” for First Amendment purposes.
The court easily found that the speech in which the blocked individuals sought to engage was political speech that fell within the core of First Amendment protection.
Next the court considered the applicability of the forum doctrine in this case.
The court explained that, for a space to be susceptible to forum analysis, it must be owned or controlled by the government. Initially, the court rejected any contention that the @realDonaldTrump Twitter account as a whole was the forum to be analyzed, noting that the blocked individuals were not seeking access to the account as a whole. That is, they did not want to send tweets as the president, receive notifications that the president would receive, or decide who the president followed on Twitter.
Nevertheless, the court found that the government-control prong of the analysis was met. It said that although Twitter is a private (although publicly traded) company that is not government-owned, the president and Scavino exercised “control over various aspects” of the @realDonaldTrump account. For instance, the court noted, they controlled the content of the tweets sent from the account and they had the ability to prevent, through blocking, other Twitter users from accessing the @realDonaldTrump timeline (while logged into a blocked account) and from participating in the “interactive space” associated with the tweets sent by the @realDonaldTrump account—that is, the space where users could directly interact with the content of the tweets by, for example, replying to, retweeting, or liking a tweet. Therefore, the court held, the extent to which the president and Scavino could, and did, exercise control over those aspects of the @realDonaldTrump account sufficiently established the government-control element for purposes of the forum analysis.
The court also decided that the president and Scavino’s control over the @realDonaldTrump account was “governmental,” given that the @realDonaldTrump account was registered to the president, that the president’s tweets from the account were official records that had to be preserved under the Presidential Records Act, and that the account has been used in the course of “executive functions,” such as in the appointment and discharge of government officers.
The court was not persuaded by the defendants’ argument that the governmental control-or-ownership prong was not met because the act of blocking was not state action, as it was available to every Twitter user. The court observed that the right to exclude was one shared by the government and private property owners alike.
Moreover, although the account was created before the president’s election, the court found that the control of the account by the president and Scavino for governmental functions meant that it was “governmental in nature.”
Importantly, the court pointed out that the government’s control did not extend to the comment thread initiated by a tweet sent by the @realDonaldTrump account. The comment thread—consisting of the initial tweet, direct replies to that tweet, and replies to those replies—was not a forum, the court found. It observed that the president and Scavino lacked control over the subsequent dialogue in the comment thread.
Therefore, according to the court, the forum doctrine did not apply to the president’s tweets, the timeline aggregating the content of the account’s tweets, or the comment threads initiated by each tweet. However, the court decided that the “interactive space” associated with each tweet was not government speech and was a forum.
The interactive space, the court acknowledged, was not a “traditional” public forum, such as a street or park. Rather, the court characterized it as a “designated public forum” as it was generally accessible to the public at large without regard to political affiliation or any other limiting criteria. Indeed, the court found that the interactivity of Twitter was one of Twitter’s defining characteristics: Any member of the public could view the president’s tweets, and anyone with a Twitter account who wanted to follow the account or participate in the interactive space by replying to or retweeting the president’s tweets could do so—unless that person had been blocked.
Given all of those preliminary determinations, the court then ruled that the continued exclusion of the blocked individuals as a result of their tweets criticizing the president or his policies was not viewpoint-neutral but was viewpoint discrimination that violated the First Amendment. Although the court recognized that the president retained a personal First Amendment interest in choosing the people with whom he associated and that he retained the right not to engage with the blocked individuals, he could not constitutionally block their access to the interactive space of his @realDonaldTrump Twitter account, the court concluded.
Following the court’s decision, the president and Scavino reportedly unblocked the blocked individuals’ Twitter accounts. Nevertheless, the Justice Department has appealed the court’s decision, so the ultimate resolution of the key issues in the case may await further judicial rulings.
Still, the court’s opinion has significant implications for other public officials with Twitter and other social media accounts. For one thing, the court explained that its ruling applied to public officials and that its analysis would have been the same whether the public official involved in the case was the president or held some other office.
There also are limits inherent in the court’s decision. The court itself pointed out that a public official’s blocking of a constituent from the public official’s “purely personal Twitter account”—one that the official did not impress with the trappings of the official’s office and did not use to exercise the authority of that position—would not implicate forum analysis. That is because, as the court made clear, a public official did not lose his or her First Amendment rights upon taking office.
The court’s decision demonstrates that social media and its central use in public discourse has come of age. It also makes clear that public officials—including the president—should carefully weigh whether they have the right to block individuals with differing viewpoints from contributing to the discussion of matters of public interest on their social media accounts as much as in any other kind of public forum.
Reprinted with permission from the June 19, 2018 issue of the New York Law Journal. © ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.