President Trump blocked some of his critics on his Twitter handle, @realDonaldTrump, prompting a lawsuit arguing that such action violated their First Amendment rights. The lawsuit raised questions about the use of social media sites by public officials.
Clearly, a personal website of a public figure is not subject to First Amendment restrictions, and so the site operator can block users. But a site run by the government, or run by a public official for his public business, would likely be categorized as a limited public forum protected by the First Amendment. Officials would violate the First Amendment if they discriminated against posters because of their viewpoint. But is @realDonaldTrump a personal site or an official government site? That’s a key question. He started the account in 2009, when he was a private citizen, but now uses it to share policy statements and his views on public issues. For news, analysis, history & legal background read on.

News & Updates

Fall 2017: Ethical and Legal Questions Arise Over President Trump’s Constant Tweets 

Is everything President Trump tweets a news story? CJR speaks with numerous journalists to discuss the President’s use of Twitter and who it affects how they do their work.

CJR>
: Federal Judge Rules that Virginia Politician Violated the First Amendment by Blocking a Critic on Facebook

In a case with implications on the president’s blocking of twitter critics, a federal judge ruled that a Virginia politician’s Facebook page was an official government site, and that she violated the First Amendment by blocking a poster whose comments she disagreed with. In his decision, U.S. District Judge James C. Cacheris wrote, “Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.”

Slate>
July 24, 2017: Maine Governor the latest to block and delete

The ACLU threatened legal action against Maine Governor Paul LePage, who had responded to critical comments on his official Facebook page by blocking some users and deleting comments.

Maine Public>
July 18, 2017: Michigan State Agencies Involved in Twitter Blocking

The Lansing State Journal found that Michigan state government agencies were blocking more than 800 Twitter users from gaining access to state Twitter accounts. Some blocked accounts were apparently pornography and spam, but others were businesses and individuals—including the official account of the President, @POTUS.

Lansing State Journal>
July 14, 2017: Trump Blocks Fortune Journalist, Who Says Career is Damaged

Rebecca Buckwalter-Poza, writing in Fortune, explains how being blocked by President Trump from his Twitter account, @realDonaldTrump, is hurting her career. She is a plaintiff in a lawsuit filed by the Knight First Amendment Center. Says Buckwalter-Poza: “These threads make up the marketplace of ideas in which my peers and potential employers, colleagues, and audience are present and participating. I’ve been forced out and have no meaningful way to rejoin them.”

Fortune>
July 12, 2017: What Tweets Will Get You Blocked By the President?

The Washington Post looks at some of the tweets that got their authors blocked from @realDonaldTrump

Washington Post>
July 11, 2017: Lawsuits Brought Against Trump for Blocking Twitter Followers

A USAToday piece discusses the lawsuit filed against President Trump, and notes that his @realDonaldTrump account has 33 million followers and that Trump has tweeted more than 35,000 times since first starting the account in 2009.

USAToday>

June 7, 2017: When Public Officials Don’t Want to Listen to You

ProPublica reports that a number of public officials are blocking people from their official Facebook and Twitter accounts because these followers disagree with them.

Pro Publica>
May 25, 2017: Rep. Peter King (R-NY) Will Delete You If You Don’t Agree

ProPublica reports that Rep. Peter King (R-NY) was deleting Facebook posts of people who criticized his views.

Pro Publica>
August 4, 2016: Police Departments Censoring Facebook Comments

The Beech Grove Police Department settled a lawsuit that came after it censored comments made on its Facebook page.

IndyStar>
June 19, 2017: Changes in Social Media Policy in Police Departments Afoot

The Honolulu Police Department changed its social media policy to permit people to post on its Facebook page without restrictions. The change of rules came after a lawsuit that alleged that the department deleted unfavorable posts and banned those who made the comments.

AP>

Analysis & Opinion

July 19, 2017: Twitter as  “Town Hall”

Reason makes the case that President Trump, having “created the constitutional equivalent of a town hall on Twitter,” is violating free speech rights by banning some followers whose posts he disagrees with.

Reason>
July 17, 2017: The First Amendment and Twitter

The Poynter Institute analyses the First Amendment arguments in the lawsuit against President Trump.

Poynter Institute >
June 6, 2017: Spicer Says President’s Tweets Are Official

White House Press Secretary Sean Spicer says that President Trump’s tweets are official statements of the President. The question of whether he uses the @realDonaldTrump account as an official government site or a personal account may be critical to whether there is a First Amendment violation in blocking the access of some users based on their political views.

CNN >
June 6, 2017: Trump Can Indeed Block Twitter Followers

Eugene Volokh, in what he called “my tentative thinking on the matter,” expressed doubt that President Trump’s blocking of some Twitter followers violated the First Amendment. “My sense is that the @RealDonaldTrump account — though run by Trump on government time and from government property — is the work of Trump-the-man (albeit a man to whom people pay attention because he is president), just as it was before November, and not Trump-the-president. His decisions about that account are therefore not constrained by the First Amendment.”

Washington Post>

History & Legal Cases

Knight First Amendment Institute Brings Lawsuit Against Trump

The complaint filed by the Knight First Amendment Institute in the U.S. District Court for the Southern District of New York, naming as defendants President Trump; White House Press Secretary Sean Spicer; and White House Social Media Director Daniel Scavino. “Defendants’ viewpoint-based blocking of the Individual Plaintiffs from the @realDonaldTrump account infringes the Individual Plaintiff’s First Amendment rights. It imposes an unconstitutional restriction on their participation in a designated public forum,” the complaint charged. In an accompanying press release Jameel Jaffer, the Knight Institute’s executive director explained, “President Trump’s Twitter account has become an important source of news and information about the government, and an important forum for speech by, to, or about the president…The First Amendment applies to this digital forum in the same way it applies to town halls and open school board meetings. The White House acts unlawfully when it excludes people from this forum simply because they’ve disagreed with the president.” The Knight Institute had initially sent a letter to President Trump, demanding that he allow access to Twitter users blocked from his account. “Blocking users from your Twitter account violates the First Amendment,” the letter stated.

In October, the White House filed a motion to dismiss stating the Knight Institute does not have standing in the case nor has it suffered an injury, “A blocked user can still post in the @realDonaldTrump comment threads, as all but one of the Individual Plaintiffs have done after being blocked, and the Knight Institute is free to view those comment threads.” The motion also dismisses the claim that the tweets were in a public forum but are rather protected government speech,”The President uses the account for his speech, not as a forum for the private speech of others. And his decision to block certain users allows him to choose the information he consumes and the individuals with whom he interacts expressive choices that public officials retain the right to make, even when those choices are made on the basis of viewpoint.”

Knight Institute Executive Director, Jameel Jaffer, responded, to these arguments that “The president isn’t above the law. The government’s claim to the contrary is based on an overbroad reading of cases that involved very different factual contexts as well as executive interests far more weighty than the ones at issue here.”

Complaint> Knight Letter>

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Cases are sparse on the question of when Facebook, Twitter, and other social media sites can be regarded as official government sites subject to First Amendment limitations. A judge must first determine whether the official’s social media site is a personal or government site. The answer may vary depending on the facts of the case. A private site is not subject to First Amendment limitations. If the court rules that the official is running a public site, then the public official would violate the First Amendment by restricting users on the basis of their viewpoint.

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Davison v. Loudoun County Board of Supervisors, U.S. District Court for the Eastern District of Virginia, July 25, 2017

The plaintiff Brian Davison’s comments were deleted from the Facebook page maintained by defendant Phyllis Randall, chair of the Loudoun County Board of Supervisors. Randall argued that her Facebook page was a personal site and not an official site of the county. However, Judge James Cacheris found that Randall created the Facebook page, with the help of her chief of staff, “for the purpose of addressing her new constituents.” It was “born out of, and is inextricably linked to, the fact of Defendant’s public office.” Randall used the Facebook page to invite people to attend events, inform constituents of her activities, and invite comments—and thus used it “as a tool of governance.”

Thus, Judge Cacheris concluded, Randall had created a public forum tied to her public office and could not, consistent with the First Amendment, cut off posters whose comments she did not like. He wrote: “If the Supreme Court’s First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends…. Defendant’s offense at Plaintiff’s views was therefore an illegitimate basis for her actions — particularly given that Plaintiff earned Defendant’s ire by criticizing the County government. Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards.”

Justia>

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Davison v. Plowman, U.S. District Court for the Eastern District of Virginia, March 28, 2017

The plaintiff Brian Davison’s comments were deleted from a Facebook page maintained by James Plowman, the Loudon County (Va.) Commonwealth Attorney. The court determined that the Facebook page was a limited public forum and that the plaintiff’s comments were outside of the subjects defined as being the subject of the forum. That meant officials had more discretion in taking down comments “In sum,” the judge wrote, “Plaintiff’s comment did not comport with the purpose of the forum, and the restriction justifying its removal was both viewpoint neutral and reasonably related to the purpose of the forum. Accordingly, Defendant did not violate Plaintiff’s First Amendment rights by removing the comment.”

Case Link>

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