August 23, 2019: Department of Justice asks federal appeals court to reconsider its July 9th-ruling, argues that account is ‘personal property’
The Department of Justice (DOJ) filed a request for a rehearing from the Second Circuit Court of Appeals as to whether Trump is allowed to block critics from his Twitter account, @realDonaldTrump.
According to the Associated Press, the DOJ is arguing that the president should be allowed to choose who accesses and interacts with his account because it is personal property.
“If the panel is correct, public officials who address matters relating to their public office on personal accounts will run the risk that every action taken on that account will be state action subject to constitutional scrutiny,” Trump’s lawyers wrote.
Director of Knight First Amendment Institute at Columbia, Jameel Jaffer, told AP that the request is unlikely to go through.
“The panel’s opinion was thorough and well-reasoned, and the arguments the White House makes in its petition for rehearing are ones the panel appropriately rejected. We hope and expect that the petition will be denied,” Jaffer said in an email to AP.
The Knight Institute sued the president on July 11, 2017 on behalf of seven people who were blocked from the @realDonaldTrump Twitter account after criticizing the president’s policies. On July 9, 2019, the Second U.S. Circuit Court of Appeals affirmed a lower court’s ruling that @realDonaldTrump was a public forum and that the president’s practice of blocking critics from this account constituted viewpoint discrimination.
July 9, 2019: Federal Appeals Court Affirms Lower Court Ruling That Trump Can’t Block Critics on Twitter
A federal appeals court ruled that President Trump’s Twitter account is a public forum, and his practice of blocking critics violates the First Amendment.
The decision arose from a July 2017 suit filed in U. S District Court for the Southern District of New York by seven Twitter users who had been blocked after they made critical remarks about Trump and/or his policies.
The critics, represented by Knight First Amendment Institute at Columbia University, sued Trump and Daniel Scavino, the White House’s Director of Social Media, for violating their First Amendment rights.
On May 23, 2018, District Court Judge Naomi Reice Buchwald ruled that Trump’s Twitter account was a public forum, and as such, he can’t discriminate against speech he dislikes. Trump appealed that decision, and on July 9, 2019, the U.S. Court of Appeals for the Second Circuit affirmed the lower court’s ruling.
The federal court ruled “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”
“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” Jameel Jaffer, the Knight Institute’s Executive Director, said in a statement. “This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”
The court did not address whether a public official with a “wholly private social media account” can block users without violating the First Amendment, or whether privately owned social media platforms are bound by the First Amendment when policing their platforms.
New York Law Journal Court Decision
May 15, 2019: Pro-gun activists sue Texas politician for blocking them on Facebook
The founders of a pro-gun rights group that was blocked by a state politician on social media filed a lawsuit in U. S. District Court for the Western District in Texas, alleging their First Amendment rights were violated.
Lone Star Gun Rights co-founders Justin Delosh and Jason Davis filed suit against Texas House Speaker Dennis Bonnen (R-Lake Jackson) after he blocked them and their group’s Facebook account from commenting on his public Facebook page.
According to the suit, Bonnen blocked Delosh, Davis, and Lone Star Gun Rights (LSGR) after he was harassed and threatened on Facebook for his stance on a “constitutional carry” bill that would allow Texans the right to openly carry a firearm without a permit.
Delosh and Davis deny that either they or any LSGR members posted threatening comments on Bonnen’s Facebook page, and claim that the politician is engaging in viewpoint discrimination and censorship.
“Rep. Bonnen runs his page as a medium of Texas Legislature-related information for anyone who wishes to follow it. He provides legislative updates, as well as answering and interacting with those who comment on those political posts…This Page is the only one for Rep. Bonnen on Facebook that is public. It is not a personal account whereby people request and confirm ‘friends’ and privacy may be set to where only ‘friends’ may view it. It is a Page similar to that of a business, organization, or celebrity which is public for all Facebook users to follow,” the complaint says.
With an official government account, the First Amendment prohibits a public official from blocking users on the basis of disagreement with the viewpoint they express.
Austin Statesman KXAN
May 13, 2019: Colorado State Senator Ray Scott Sued for Blocking a Critic on Social Media
A Colorado state senator is being sued for blocking a constituent on social media.
Anne Landman is suing Republican Senator Ray Scott after he banned her from his official Twitter and Facebook accounts two years ago.
“Sen. Scott censored me for being a critical constituent. Yet, he’s allowed his like-minded followers to ridicule me on his page and retain their right to speak freely,” Landman said in a statement. “This doesn’t feel like democracy. This feels like hypocrisy and punishment for having a different point of view.”
At issue in this case, as in similar cases, is whether a public official’s account is a personal one or an official government account. President Trump was sued in 2017 by the Knight First Amendment Institute on behalf of seven individuals who were banned from Trump’s Twitter account. Knight has argued that it is an official government account given how Trump and his aides have “aggressively promoted the @realDonaldTrump account as a key channel for communication between the president and the public.”
With an official government account, the First Amendment prohibits a public official from blocking users on the basis of disagreement with the viewpoint they express.
Landman is being represented by the American Civil Liberties Union (ACLU), which has also filed lawsuits against public officials in Kentucky, Maine, and Maryland who have blocked critics on social media.
“Social media platforms are the new town halls,” said ACLU of Colorado Legal Director, Mark Silverstein in a statement. “Just as we would not tolerate a government agency kicking a concerned citizen out of a public hearing because they disagree with an elected official, the same rules apply on the internet. When an elected official or government agency is using social media to communicate with the public, the government cannot pick and choose who gets to see or comment on that information.”
In May, a federal judge in Manhattan ruled that the President’s Twitter bans were unconstitutional, prompting the Trump administration to appeal that decision. The U.S. Court of Appeals for the 2nd Circuit is currently considering the case.
The Denver Post KJCT8 ACLU
March 26, 2019: Knight v. Trump Makes Its Way To 2nd U.S. Circuit Court of Appeals
The appeals-court judges expressed some skepticism of President Donald Trump’s move to dismiss a lawsuit by a group of Twitter users who were blocked from following him, questioning his argument that @realDonaldTrump is a personal account rather than an official one. They did not immediately rule whether to uphold a lower court’s determination that Trump blocking critics on Twitter is a violation of the First Amendment.
Associated Press Bloomberg
January 18, 2019: Another Judge Rules That Politicians Censoring Critics On Twitter Violates The First Amendment
A federal judge ruled that three Republican members of the Wisconsin State Assembly violated the First Amendment rights of a liberal advocacy group by blocking the group’s account from their respective Twitter pages.
The group, One Wisconsin Now (OWN), filed a lawsuit in 2017 against Assembly Speaker Robin Vos, Representative John Nygren, and then-Representative Jesse Kremer for blocking them on Twitter. Prior to being blocked, OWN would often monitor, comment on, reply to, or retweet messages from their Twitter accounts. By blocking them, the public officials prevented OWN from participating in interactive conversations on their feeds. The judge ruled that because the defendants operated their accounts as public officials, the accounts are “designated public forums,” and that blocking OWN constituted “content-based discrimination.”
“All three defendants indicated, either directly or indirectly, that they do not approve of plaintiff’s liberal perspective,” the judge wrote.
The judge, however, did not yet order the politicians to unblock OWN, nor prohibit them from blocking other Twitter accounts, as OWN requested. He asked both parties to submit briefs on how he should grant relief, and designated a day in March for a one-day trial to further discuss the issue if necessary.
Associated Press Milwaukee Journal Sentinel One Wisconsin Twitter Decision
August 11, 2018: Dozens Of Twitter Accounts Still Blocked By Trump Despite Ruling
In a letter sent to the Justice Department, the Knight First Amendment Institute asked the White House to unblock 41 more critics from the President Donald Trump’s Twitter account.
Associated Press Knight Press Release
August 7, 2018: DOJ Files Appeal Brief
The U.S. Department of Justice filed an appeal brief in response to the lawsuit by the Knight First Amendment Institute and individuals blocked by President Donald Trump’s Twitter account, defending his ability to block Twitter accounts. In the appeal, the DOJ argues that Trump’s Twitter account is operating as a personal one rather than governmental, rejecting the district court’s public doctrine ruling.
Brief For Appellants
July 26, 2018: Vermont Governor Unblocks Facebook Users
In an attempt to “foster healthy constituent engagement”, Governor Phil Scott of Vermont has unblocked Facebook users and said that he in the process of revising his social media plan. His social media policies were condemned by many, including the Vermont ACLU.
Associated Press MyChamplainValley.com
June 4, 2018: Seven Plaintiffs in Lawsuit Now Unblocked on Twitter, Others Still Remain Blocked
The seven Twitter users represented by the Knight First Amendment Institute at Columbia University have been unblocked from the @realDonaldTrump Twitter account in response to a recent federal ruling that the president’s practice of blocking users is unconstitutional and in violation of the First Amendment. The government filed notice that it would appeal the district court’s decision to the United States Court of Appeals for the Second Circuit.
“We’re pleased that the White House unblocked our clients from the president’s Twitter account but disappointed that the government intends to appeal the district court’s thoughtful and well-supported ruling,” said Jameel Jaffer, executive director of the Knight Institute. “We look forward to defending the ruling in the Second Circuit.”
However, other Twitter users reportedly remain blocked.
“We are concerned by reports that individuals other than our clients are still blocked from the account. It should go without saying that those individuals have the same rights as our clients,” said Katie Fallow, senior staff attorney at the Knight Institute. “If they have been blocked on the basis of their viewpoints, the White House should unblock them immediately.”
Reuters NPR Notice of Appeal
June 1, 2018: Some Politicians Unblocking Users After Trump Twitter Decision
SF Weekly reports that San Francisco Mayoral candidate and District 5 supervisor London Breed no longer blocks critics on Twitter. Lieutenant Governor, former mayor, and gubernatorial candidate Gavin Newsom has also unblocked some Twitter users, according to their reporting.
“Board President Breed does not have anyone blocked on her Twitter,” a staff spokesperson for Breed told SF Weekly. “She has unblocked people from time to time; the most recent occasion happened to be several days before the court ruling came down on May 23.”
June 1, 2018: Is it outside the Constitution To Ask The President To Comply With Federal Judge Ruling To Stop Blocking Users On Twitter?
Scott Bomboy, editor in chief of the National Constitution Center, discusses whether the head of the Executive Branch can take direct orders from a federal judge.
National Constitution Center
May 27, 2018: Blocked Twitter Users Could Take Case To Supreme Court
The seven plaintiffs who sued President Trump for blocking them on Twitter said that the group has discussed the next steps with their legal team and are prepared to return to court.
One option could be getting an injunction, one of the plaintiffs told Newsweek. Another suggest that the courts could avoid confrontation with the President by ordering Dan Scavino, the White House director of social media, to unblock the users.
May 24, 2018: Twitter users still blocked by Trump after court rules it is “Unconstitutional”
Eugene Gu, one of the plaintiffs in the lawsuit, told Newsweek that he and other plaintiffs were still blocked by President Trump, who has still not complied with the court’s ruling.
Judge Buchwald did not order President Trump or Dan Scavino, the White House director of social media, to unblock the users, maintaining that a declamatory judgement was sufficient.
“Because 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 and Scavino will remedy the blocking we have held to be unconstitutional,” she wrote.
May 23, 2018: ACLU of Kentucky To Pursue Case Against Governor In Light of Trump Ruling
An ACLU of Kentucky attorney says that it will move forward in its case against Governor Matt Bevin with the hopes that the federal ruling against President Trump will turn the tide in this case. The ACLU filed a preliminary injunction in March to stop Governor Matt Bevin from blocking users on his official Twitter and Facebook accounts. A preliminary ruling ruled in favor of Bevin. According to the Courier-Journal, as of June 2017 the governor’s official Facebook page blocked 300 accounts and his Twitter account blocked 300 users. The Chief Deputy Counsel for the Governor says the Trump ruling does not change the ruling in this case.
May 23, 2018: Court rules that President Trump’s Blocking of Critics on Twitter is Unconstitutional
In response to a lawsuit filed against President Trump in July by the Knight First Amendment Institute at Columbia University and seven Twitter users, U.S. District Judge Naomi Reice Buchwald in New York ruled that Trump may not legally block Twitter users because doing so violates a right to free speech. Buchwald agreed with the plaintiffs’ argument that the discussions and interactions arising from the Trump Twitter feed are considered a public forum under the First Amendment and that the president is therefore unable to block users from his account on the basis of viewpoint. She rejected the Justice Department’s counterargument that Trump’s own First Amendment rights gave him the ability to block Twitter users.
“While we must recognize, and are sensitive to, the president’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him,” Buchwald said.
“We’re pleased with the court’s decision, which reflects a careful application of core First Amendment principles to government censorship on a new communications platform,” said Jameel Jaffer, the Knight Institute’s executive director. “The president’s practice of blocking critics on Twitter is pernicious and unconstitutional, and we hope this ruling will bring it to an end.”
Knight First Amendment Institute Press Announcement Reuters NBC News
April 3, 2018: Maryland Governor Must Open His Facebook Page To All
Back in 2015, comments James Laurenson of Maryland made on Maryland Governnor Larry Hogan’s Facebook page about his displeasure over Hogan’s refusal to support then President Obama’s Syrian refugee policy were deleted and he was blocked. The American Civil Liberties Union of Maryland filed a lawsuit on behalf of Lawrenson and others who claimed “repeated and ongoing censorship of Plaintiffs’ constitutionally protected speech by Governor Larry Hogan and members of his staff, including Defendants Douglass Mayer and Robert Windley.” The suit was recently settled with the governor’s Facebook page opening up to all viewpoints. The ACLU stated the settlement is “victory for the free-speech rights of constituents who wish to respectfully disagree” with the governor.
NBC News ACLU Complaint
March 8, 2018: Is Muting Critics As Opposed to Deleting Them A Better Option For Public Officials on Twitter?
U.S. District Judge Naomi Reice Buchwald suggested a practical solution to resolve Knight First Amendment Institute’s case against President Trump: allow him to mute his critics which will still give them access to his account while allowing him to not engage with their commentary.
January 19, 2018: Prepping for March Oral Arguments in Knight First Amendment Institute v. Trump
A review on the Academe blog as oral arguments begin March 8th in the Twitter case against President Trump blocking followers.
December 18, 2017: Kentucky Governor Matt Bevin battling the ACLU over the blocking of 600 social media accounts
A standoff between the Kentucky Governor and the ACLU is brewing; the Governor’s office says it deletes comments and blocks users it deems obscene, the ACLU says this is a violation of First Amendment rights. In July, the ACLU filed a lawsuit on behalf of two blocked users and followed up in September with an open records request of what words the Governor’s office deems obscene. In December, Attorney General Andy Beshear said the Governor’s office had violated The Kentucky Open Records Act. What happens next is being closely followed.
November 26, 2017: CNN Compiles All the President’s Tweets
What the President is saying in 140 characters or less.
November 25, 2017: Trump Tweet Against CNN International Draws Criticism From ex-President George W. Bush’s Speechwriter
David Frum, former speechwriter for ex-President George W. Bush and now Senior Editor, The Atlantic, took to Twitter to defend international journalists and the danger they face reporting abroad after President Trump’s tweet calling CNN International “fake news.”
The Hill Slate
November 3, 2017: Knight First Amendment Institute Responds to President’s Trump Motion to Dismiss Suit
The lawsuit brought by the Knight First Amendment Institute against President Trump for blocking Twitter followers as unconstitutional went one step forward Friday with the filing of a response by the Institute to the President’s motion to dismiss the suit. “The President is not above the law, and the notion that the separation of powers requires this Court to turn a blind eye to the President’s violations of First Amendment rights turns the separation of powers on its head.”
Plaintiffs’ Cross-Motion For Summary Judgement
November 1, 2017: Wisconsin Communications Network Sues Elected Officials For Twitter Blocking
One Wisconsin Now is asking for an end to restrictions on speech and petition resulting from being blocked on the official Twitter accounts of legislators conducting public business on Twitter. State Assembly Speaker Robin Vos, State Representative John Nygren, and State Representative Jesse Kremer (and author of legislation restricting free speech on University of Wisconsin campuses) have blocked the communications network. “Free speech isn’t just for the people or organizations whom they like or with whom they agree,” said One Wisconsin Now Executive Director Scot Ross.
Press Release One Wisconsin Now Complaint
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 how it affects how they do their work.
July 28, 2017: 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.”
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.
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.”
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
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.
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.
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.
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.
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.
July 9, 2019: Harvard Law Professor Argues That Trump’s Twitter is the Company’s Private Property
Writing for Bloomberg Opinion, Noah Feldman, a professor of law at Harvard University, argues that the federal appeals court erred when it ruled that Trump can’t block users on his Twitter account.
Feldman, a former clerk for Supreme Court Justice David Souter, contends that Trump’s Twitter account is neither a private account nor a public forum. Instead, he argues, it is property controlled by Twitter. And because Twitter has rules for content moderation, “under the Supreme Court’s interpretation of the First Amendment, Twitter has a constitutional right to apply them to all speech on its platform.”
April 3, 2019: Beyond The President: Judges Begin To Accept That First Amendment Applies To Social Media Platforms
The New York Times reports that the case Knight v. Trump may have implications far beyond the president, as public officials across the country at all levels increasingly use social media platforms to engage with their constituents.
The New York Times
The New York Times editorial board weighs in as well:
“Should the Second Circuit follow suit and apply the same standard to Mr. Trump and his Twitter use, more public officials will need to think twice before hitting the “block” button — or about taking other actions that, in the online marketplace of ideas, may be seen as punishing people for their views.”
The New York Times
May 31, 2018: An expert weighs in on the limits of the Trump Twitter ruling
Lyrissa Lidsky, dean of University of Missouri School of Law, writes in her analysis of the Trump Twitter decision that this case is the second federal district court decision that is defining First Amendment limits on government social media use, and likely not the last.
May 24, 2018: Twitter, the NFL and Free Speech
In light of the same day Trump/Twitter legal decision and the NFL announcement on anthem protests, Victoria Smith Ekstrand, UNC Media Law Professor, outlines what she sees as a troubling trend of First Amendment debates in a society that is increasingly relying on private platforms and interests for public debate. “Whether it’s the football field or the Twittersphere, our discussion about public matters no longer takes place on the street corners,” she writes. “The most vigorous public debate now takes place in privately-held spaces, such as social media and our entertainment media, like the NFL, where the First Amendment has less reach.”
The News and Observer
May 24, 2018: If President Trump Can’t Block Twitter Users, Can Twitter Block Users?
Bloomberg Opinion Columnist Noah Feldman argues that the court’s ruling on the Trump Twitter case needs to be appealed because it opens up the platform to further lawsuits. Users who are blocked from Twitter altogether may start suing the company because they are being excluded from Trump’s Twitter account, a setting the court deems a “designated public forum.” “If access to Trump’s account is a constitutional right,” he argues, “why should any member of the public be blocked from participating on it?”
May 23, 2018: First Amendment Lawyer Floyd Abrams Weighs in on the Court’s Decision
Floyd Abrams says that the court’s decision has nothing to do with President Trump’s views or the views of the judge, but rather his position as president. He is the first and only president to use Twitter as a means of official communication. Only under his presidency has the White House been informed by the National Archives that his tweets are public records that require preservation under the Presidential Records Act.
“A President who uses Twitter to pronounce many of his most critical decisions and defend them to the public cannot avoid his critics or deprive them of the chance to respond in the same place and at the same time as do his supporters,” Abrams says. “Judge Buchwald’s opinion is a powerful one that sends a powerful First Amendment message.”
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.
July 17, 2017: The First Amendment and Twitter
The Poynter Institute analyses the First Amendment arguments in the lawsuit against President Trump.
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.
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.”