Public officials who take to social media for official government business, the court said Tuesday, are prohibited from excluding people “from an otherwise open online dialogue because they expressed views with which the official disagrees,” Judge Barrington D. Parker wrote for a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit.
“In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.”
Trump’s Twitter habits through his @realDonaldTrump account were central to the case brought by seven people blocked after posting disapproving comments in 2017.
The First Amendment prevents the government from blocking or excluding views it disagrees with in what is known as “viewpoint discrimination.” The Supreme Court has not directly addressed how the law applies to expanding digital spaces for public debate, and the case involving the president’s account — with more than 61 million followers — was a high-profile legal test.
Elected officials throughout the country are also learning to navigate how those principles apply to their social media accounts. Tuesday’s ruling echoed an earlier decision from the Richmond-based appeals court involving the Facebook page of a Virginia politician.
In the president’s case, attorneys from the Knight Institute at Columbia University, representing the blocked users, said Trump’s Twitter account is an extension of the presidency that is routinely used by Trump to announce government nominations, defend his polices and promote his legislative agenda. The comment section is no different from a traditional town hall meeting, they said, and citizens must be allowed to respond directly to government officials and engage in public policy debates.
“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” Knight Institute Executive Director Jameel Jaffer said in a statement after the ruling.
“This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints. It will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”
Justice Department lawyers defending the president said in court that @realDonaldTrump is a personal account on a privately owned digital platform and that Trump may block followers he “does not wish to hear.” The president’s lawyers drew parallels to the physical properties Trump and other presidents owned before taking office. A president’s residence — or social media account — does not become government property when the president conducts government business there.
The president had unblocked the seven people behind the initial lawsuit while the case was pending on appeal.
Justice Department spokeswoman Kelly Laco said in a statement Tuesday, “We are disappointed with the court’s decision and are exploring possible next steps.”
“As we argued, President Trump’s decision to block users from his personal Twitter account does not violate the First Amendment,” Laco said.
The court’s decision Tuesday addressed only the interactive spaces on Twitter for replies and comments, and applies to accounts used to conduct official business.
“Since he took office, the President has consistently used the Account as an important tool of governance and executive outreach,” Parker wrote in the 29-page opinion, joined by Judges Peter W. Hall and Christopher F. Droney.
“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,” Parker wrote.
The judges did not decide whether elected officials violate the Constitution when they block users from “wholly private accounts.” The ruling also did not address whether private social media companies like Twitter are bound by the First Amendment when “policing” their platforms.
The judges did, however, acknowledge the role social media plays in modern public policy discussion.
“The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide-open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen,” Parker wrote. “This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing.”