(May 23, 2018) Because Donald Trump presents his account as a “Presidential account” and uses it to take actions that can be made only by a President, his Twitter account is a public forum and he cannot block persons who criticize him and his policies from viewing the account, a federal judge found.
However, the judge declined to grant an injunction requiring the President to unblock the accounts because, she reasoned, “no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President . . . will remedy the blocking we have held to be unconstitutional.”
The case was filed by several persons whom the President “blocked” from his Twitter account “because the Individual Plaintiffs posted tweets that criticized the President or his policies.” By blocking their accounts, the President prevented them from viewing his tweets, directly replying, or using the @realDonaldTrump webpage to view the comment threads associated with the tweets.
The court found the President’s action prevented them from engaging in political speech, violating their First Amendment rights. The court agreed that generally Twitter is a private, not governmental, forum. However, the President uses his account for governmental functions, making it a governmental forum that invokes First Amendment protection to the plaintiffs.
“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 their viewpoint is, therefore, impermissible under the First Amendment,” the 75-page opinion stated.
The court conceded that the President also has First Amendment rights but they must yield to the rights of the plaintiffs. “The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests,” the judge said.
Knight First Amendment Institute at Columbia University et al. vs. Donald J. Trump, et al., U.S.D.C. Southern Dist. N.Y. No. 17 Civ. 5205, issued May 23, 2018.