from the does-the-President-care? dept
Just last month, we noted that a court in Kentucky had ruled that the Governor of that state was free to block critics on social media accounts, saying that while people are free to speak, the First Amendment does not mean that the Governor has to listen. As we noted at the time, that ruling did not bode well for a more high profile case that was filed by the Knight First Amendment Center at Columbia University against President Donald Trump under similar circumstances. However, as you may have heard, a federal court in New York has now ruled that Trump's blocking is unconstitutional.
This is, not surprisingly, getting lots of attention, but many people commenting on it are not fully understanding the actual issues in the lawsuit (shocking, I know, that people doing legal analysis on the internet might sometimes not get it right...). As we've noted plenty of times in the past, the First Amendment does not apply to private platforms, and nothing in this ruling means that Twitter is a "public forum" (as some nuttier lawyers are trying to argue in other cases). Instead, the ruling is specific that it is just the commentary in response to Donald Trump that has become a public forum.
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: they control the content of the tweets that are sent from
the account and they hold the ability to prevent, through blocking,
other Twitter users, including the individual plaintiffs here,
from accessing the @realDonaldTrump timeline (while logged into
the blocked account) and from participating in the interactive
space associated with the tweets sent by the @realDonaldTrump
account... Though Twitter also maintains
control over the @realDonaldTrump account (and all other Twitter
accounts), we nonetheless conclude that the extent to which the
President and Scavino can, and do, exercise control over aspects
of the @realDonaldTrump account are sufficient to establish the
government-control element as to the content of the tweets sent by
the @realDonaldTrump account, the timeline compiling those tweets,
and the interactive space associated with each of those tweets.
While their control does not extend to the content of a retweet or
reply when made -- “[n]o other Twitter user can alter the content
of any retweet or reply, either before or after it is posted” and
a user “cannot prescreen tweets, replies, likes, or mentions that
reference their tweets or accounts,” ... -- it nonetheless
extends to controlling who has the power to retweet or reply in
the first instance.
Got that? It's an important nuance. Basically, the court is saying that because the President and his assistant "control" the space in which discussion occurs following his Tweets, that makes it a "designated public forum" and then, because it's the President and he is (duh!) a powerful government official, and government actors are not allowed to stifle protected speech, blocking accounts violates the First Amendment rights of those blocked. First, the court notes that that space in response to Trump's tweets is governmental in nature:
The President and Scavino’s control over the @realDonaldTrump
account is also governmental. The record establishes (1) that the
@realDonaldTrump account is presented as being “registered to
Donald J. Trump, ‘45th President of the United States of America,
Washington, D.C.,’” ... (2) “that the President’s tweets
from @realDonaldTrump . . . are official records that must be
preserved under the Presidential Records Act,” ... see 44
U.S.C. § 2202 (directing the retention of “Presidential records”;
id. § 2201(2) (defining “Presidential records” as those created
“in the course of conducting activities which relate to or have an
effect upon the carrying out of the constitutional, statutory, or
other official or ceremonial duties of the President”); and (3)
that the @realDonaldTrump account has been used in the course of
the appointment of officers (including cabinet secretaries), the
removal of officers, and the conduct of foreign policy, ...
-- all of which are squarely executive functions.... That is, the President presents the
@realDonaldTrump account as being a presidential account as
opposed to a personal account and, more importantly, uses the
account to take actions that can be taken only by the President as
President. Accordingly, we conclude that the control that the
President and Scavino exercise over the account and certain of its
features is governmental in nature.
And thus, blocking is unconstitutional under the First Amendment because blocking people based on what they've said is a content-based restriction on speech:
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,” ...
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.” ... The
continued exclusion of the individual plaintiffs based on
viewpoint is, therefore, impermissible under the First Amendment.
The court further finds that using Twitter's mute feature, rather than block, would be Constitutional, because that doesn't implicate the others' right to speak in that public forum (though it does stop Trump from seeing those tweets).
Given these differing consequences of muting and blocking, we
find unpersuasive defendants’ contention that a public official’s
muting and blocking are equivalent, and equally constitutional,
means of choosing not to engage with his constituents. Implicit
in this argument is the assumption that a reply to a tweet is
directed only at the user who sent the tweet being replied to.
Were that so, defendants would be correct in that there is no
difference between the inability to send a direct reply (as with
blocking) and the inability to have that direct reply heard by the
sender of the initial tweet being responded to (as with muting).
But this assumption is not supported in the record: a reply is
visible to others, ... and may itself be replied to by
other users.... 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.
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. While we must
recognize, and are sensitive to, the President’s personal First
Amendment rights, he cannot exercise those rights in a way that
infringes the corresponding First Amendment rights of those who
have criticized him.
There is one odd bit that is not mentioned in most of the commentary on this ruling. And it's this: the court does not actually order Trump to stop blocking people. It just says that it's unconstitutional. Given the choice between giving the Knight Center injunctive relief (i.e., forcing the defendant to comply) and merely declaratory relief (i.e., telling the plaintiff they are correct), it chose the latter. It notes that there is some question of whether or not the courts can impose injunctive relief on a sitting President, and decides to side-step the question altogether.
While we find entirely unpersuasive the
Government’s parade of horribles regarding the judicial
interference in executive affairs presented by an injunction
directing the President to comply with constitutional
restrictions, we nonetheless recognize that “[a]s a matter of
comity, courts should normally direct legal process to a lower
Executive official even though the effect of the process is to
restrain or compel the President.”
It does note that it could award injunctive relief against the guy who helps manage the Twitter account, Dan Scavino, but chooses not to. In effect, the court says that by granting declaratory relief and merely saying that this activity violates the First Amendment, that should be enough to convince Scavino and Trump to stop blocking:
Accordingly, though we conclude that injunctive relief may be
awarded in this case -- at minimum, against Scavino -- we decline
to do so at this time because declaratory relief is likely to
achieve the same purpose. The Supreme Court has directed that we
should “assume it is substantially likely that the President and
other executive . . . officials would abide by an authoritative
interpretation of [a] . . . constitutional provision,”... (“Were this court
to issue the requested declaration, we must assume that it is
substantially likely that [government officials] . . . would abide
by our authoritative determination.”), and there is simply no
reason to depart from this assumption at this time.
Given this particular administration, that seems like a mighty big assumption. The White House has, at the very least, already suggested it will appeal this ruling, so the issue of declaratory v. injunctive relief may not really be all that important or get much attention, but it does seem noteworthy that the court seems to say it doesn't need to order the President to do anything since it expects him to respect its ruling. Some people might fight that assumption somewhat laughable.
Meanwhile, this President, who has at multiple times claimed to be a huge First Amendment supporter, has lost a First Amendment case for stomping on the rights of some of the citizens of the country whose government he runs.
Filed Under: blocking, dan scavino, donald trump, first amendment, free speech, muting, public forum, social media
Companies: knight center
