President Trump is being sued by several Twitter users whom he blocked from accessing his @realDonaldTrump account; they are claiming that the account is a government-provided “limited public forum” and that users should be able to post comments on it (within what the Twitter platform allows) without governmental viewpoint discrimination. The key question is whether the account is indeed treated as government speech, or whether it should instead be seen as Trump’s speech as a politician — if it is the latter, then Trump wouldn’t have to be viewpoint-neutral in his blocking.

That free speech clause question turns out to be a potentially very similar question to the establishment clause question of when government officials may say things that endorse religion. The Supreme Court has (controversially) concluded that the government generally may not say things that endorse religion (whether a particular religion or religiosity more generally), or disapprove of religion. But government officials often convey religious messages, from a “God Bless America” in their speeches to much more religious things. As I noted when I first blogged about the Trump Twitter blocking controversy, even Justices John Paul Stevens and Ruth Bader Ginsburg — who generally strongly support the “no government speech endorsing religion” rule — took the view that officeholders can be seen as speaking in their capacity as politicians rather than as government officials even when “delivering public addresses,” and are thus free to engage in religious speech in that capacity:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

And this legal connection between the free speech clause issue (is Trump’s Twitter feed government action, so that Trump can’t engage in viewpoint-based blocking of commenters, or is it Trump’s action as a politician?) and the establishment clause (are officials’ Twitter feeds government action, so that they can’t endorse religion in those feeds, or are they the officials’ actions as politicians?) has now become particularly salient, because the Freedom From Religion Foundation has complained about Sen. Marco Rubio’s (R-Fla.) regular Bible verse quotations on his Twitter feed:

We understand that you have been tweeting bible verses from @MarcoRubio to nearly three million followers. It appears that you began tweeting the bible in mid-May and have been doing so regularly ever since. This is not an errant bible verse or two, but more than 60 bible verses in three months …

Tweets from the @MarcoRubio Twitter account are government speech.

… Partly because of the power and influence of those accounts, the private social media accounts of people who assume government office can become accounts that speak for the government, unless these officers carefully distinguish their public and private roles.

The @MarcoRubio account has not been scrupulous or thorough in this regard. It regularly, indeed mostly, transmits official statements and would be considered government speech. Citizens cannot be expected to discern the difference between an official government statement and a private statement when the source of those statements has not itself bothered to make the distinction clear.

We are aware of your official press office account, @SenRubioPress, but the existence of this account does not alter the official nature of your @MarcoRubio account. The government is not confined to making official statements from only one platform. The tweets from President Trump’s @RealDonaldTrump were held to be “official statements” despite the existence of several other official accounts, including @WhiteHouse and @POTUS.

Courts have not shied away from declaring that accounts that some politicians believe to be private are in fact official government accounts. The Ninth Circuit Court of Appeals recently noted that the President’s Twitter feed is composed of “official statements by the President of the United States” and we see no legal reason to treat your Twitter feed differently. See Hawai’i v. Trump, Case No. 17-15589 at *48—49, n. 14 (9th Cir. June 12, 2017).

In a recent decision involving a similar social media page, a federal court found that a government official had been acting under the color of law by maintaining the page and blocking citizens from that page and that doing so violated the First Amendment. See Davison v. Loudoun County Board of Supervisors, et al, No. 1:2016-cv-00932, (E.D. Va. 2017) available at https://goo.gl/YejzS9

    • The government official exercised plenary control over the social media page.
    • The social media page allows public figures to interact with the public.
    • Staff sometimes curated the social media account.
    • The social media account will not revert to the government when the official leaves office, but stay with the official.
    • Personal devices were exclusively used to post to the account.
    • Indicators, such as an official title, appeared on the account.
    • Many posts concerned official government work.
    • Many posts promoted and invited attendance at events related to the officials’ work as a government official.
    • Posts included or relayed official statements from the official.

The social media account was considered to be official despite the fact that the official’s enumerated duties did not include social media, that it would remain with the official after leaving office, and that much of the activity took place outside normal working hours.

We believe all of this can be said of the @MarcoRubio Twitter account too. These facts led the court to answer “a novel legal question: when is a social media account maintained by a public official considered ‘governmental’ in nature, and thus subject to constitutional constraints?” in the affirmative and hold that the account was maintained under color of law. In other words, the social media account had a “sufficiently close nexus” with the government to be fairly treated as that of the government itself.

In the case of @MarcoRubio, the bible tweets appear to be tied to your identity as a government actor and were facilitated by the apparent authority of that office. The tweets arise out of public, not personal, circumstances. The account is used to keep constituents informed of the activities of Marco Rubio the Senator, not Marco Rubio the private citizen and family man.

Of course, there can also be distinctions drawn between the “government speech vs. speech as politician” questions as they relate to Twitter blocking and to endorsement of religion. (Our job as lawyers is to be good at drawing distinctions when we need to, and making analogies when we need to.) It’s possible that courts will say that an elected official’s Twitter account is government speech enough to forbid viewpoint-based comment blocking, but individual speech enough to allow religious expression.

But it’s also possible that they won’t, and that (as the Freedom From Religion Foundation is arguing) a ruling against Trump on the free speech lawsuit would restrict other politicians’ religious tweets as well, at least when those tweets are part of the politicians’ tweeting on political issues.