“The concern is that if this kind of practice of blocking dissenting voices is allowed to continue unchecked, then you can end up with a kind of echo chamber, where only voices that support the government are heard,” said Katie Fallow, a senior staff attorney for the Knight Institute, who will be arguing in court.
The government has acknowledged that the president did block the seven Twitter users, whose tweets “generally expressed displeasure with the President, often with intentionally inflammatory language.” But the Justice Department has argued, in part, that Trump was not exercising official state power but was acting in a personal capacity when he blocked them. “The President, like other public officials, routinely engages in conduct that is not state action, whether that might be giving a toast at a wedding or giving a speech at a fundraiser,” the Justice Department wrote in a brief.
Trump has used the @realDonaldTrump account to remark on official policy. In one example that Fallow pointed out, he tweeted a proposal last year to ban transgender troops. But the government has maintained that not all of his tweets are official state actions. “To be sure, the President's account identifies his office, and his tweets about the policies of his administration. But the fact that the President may announce the 'actions of the state' through his Twitter account does not mean that all actions related to that account are attributable to the state,” the government wrote.
The Justice Department declined to comment.
David Greene, the civil liberties director of the Electronic Frontier Foundation, which filed a brief in support of the plaintiffs, said focusing on the distinction of an official account rather than the substance of an account could create a “really easy workaround” for public officials to block their critics. If using a personal account offered politicians greater license to deny critics access to public debate, “Why would any government official have an official account?” he said.
On Thursday morning during oral arguments, District Judge Naomi Reice Buchwald will have the opportunity to press either side with questions. It isn't clear when she will issue a decision. Both the government and the Knight Institute will have the ability to appeal the ruling to the U.S. Court of Appeals for the 2nd Circuit if they do not prevail. The suit was filed in the U.S. District Court for the Southern District of New York.