July 29, 2022: California School Board Trustees Lose Suit Over Blocking Users on Social Media
The United States Court of Appeals for the Ninth Circuit upheld a lower court judgment that two California school district trustees infringed the First Amendment rights of a couple who were blocked from posting frequent critical comments on the trustees’ social media accounts.
T.J. Zane and Michelle O’Connor-Ratcliff, trustees on the board of education for the Poway Unified School District in San Diego County set up social media accounts on Facebook and Twitter separate from their personal ones to discuss and promote school-related content.
The couple with children in the district, Christopher and Kimberly Garnier, were known for frequently posting long, critical and repetitive posts on the trustees’ and Board of Trustees’ pages. In the beginning, Zane and O’Connor-Ratcliff, on their respective pages, would delete or hide the Garniers’ posts but over time, they blocked them entirely.
The controversy raised the question of public officials blocking people who post comments on social media sites that public officials have dedicated to inform the public and encourage discussion. Under First Amendment law, such use of social media creates a limited purpose public forum, in which the government can limit the forum to certain subjects but cannot discriminate among speakers based on their viewpoint. Officials can, however, impose reasonable time, place and manner restrictions—such as maintaining a site for discussion of specific topics.
Jan. 27, 2021: Missouri State Official Can Block Users From Her Twitter Account, Eighth Circuit Rules
Not every “political” social media account run by a public official is a public forum, a three-judge panel for the United States Court of Appeals for the Eighth Circuit ruled on January 27th. The case involves a Missouri state legislator who was sued by her political opponent after she blocked him from her Twitter account.
“The Twitter page of a political candidate does not convert itself into an official page just because the candidate chooses a handle that reflects the office she is pursuing … or because she posts a photo of herself working at the job she was elected to perform and hopes to be elected to perform again,” Judge Richard S. Arnold wrote on behalf of the 2-1 majority.
See our Teacher Guide on the First Amendment and Public Officials Who Block Critics from their Social Media Accounts
The case involves Missouri state representative Cheri Toalson Reisch, who blocked her political opponent Mike Campbell after he retweeted a post criticizing her. Though Reisch had opened the account before she was elected to public office, Campbell argued that it bore the typical “trappings” of an official account including posts about legislation she supported, and pictures of herself on the House floor. In 2019, the District Court ruled in favor of Campbell and found that Reisch had violated his First Amendment rights when she blocked him from her Twitter account.
Judge Arnold upheld the fundamental principle established by the Fourth Circuit in Davison v. Randall and the Second Circuit in Knight v. Trump: a public official who uses a personal social media account for official purposes has opened a public forum and cannot, consistent with the First Amendment, block users from accessing their feed. But, he did not agree with the lower court that Reisch had used her Twitter account for official purposes. Here, Judge Arnold drew a distinction between a government account and a campaign account, and noted that a political candidate is a private actor.
Judge Arnold wrote that Reisch’s account was “fundamentally different from the accounts at issue in Trump and Davison,” which were indisputably official.
Judge Louise Kelly, who wrote a dissent, argued that trying to distinguish between campaign speech and official speech was too challenging, as the two are often intertwined.
Jan. 8, 2021: Twitter Permanently Removes @realDonaldTrump from Platform
On January 8, Twitter announced that it had decided to permanently remove President Donald Trump’s personal account, @realDonaldTrump, from the platform. The decision came after a violent mob of Trump supporters broke into the Capitol building in an attempt to stop the U.S. election.
“After close review of recent Tweets from @realDonaldTrump account and the context around them – specifically how they are being received and interpreted on and off Twitter – we have permanently suspended the account due to the risk of further incitement of violence,” the company said in a statement.
The company’s decision could affect the U.S. Supreme Court’s willingness to review the Second Circuit’s decision in Trump v. Knight First Amendment Institute. Without access to his account, Trump cannot block, or unblock users. In a statement on January 8th, Jameel Jaffer, the lead attorney for the blocked users, said the company’s ban “effectively moots” Trump’s petition for review.
The Volokh Conspiracy
Aug. 21, 2020: Government Petitions Supreme Court to Review Knight v. Trump Decision on Twitter Blocking
The White House is petitioning the United States Supreme Court to review the Second Circuit ruling which found Trump’s practice of blocking critics on his personal Twitter account, @realDonaldTrump, a violation of the First Amendment.
In 2017, the Knight First Amendment Institute at Columbia University sued President Donald Trump for blocking seven people from @realDonaldTrump because they were critical of his administration. Though the account was technically personal, the Knight Institute argued that Trump overwhelmingly used it for official communication such as announcing policy decisions and describing meetings with foreign leaders. In doing so, Knight postulated, Trump’s account was a public forum, and any attempt to block critical users was an act of government censorship.
The United States District Court for the Southern District of New York and the United States Court of Appeals for the Second Circuit have both ruled that Trump’s act of blocking individuals is unconstitutional.
In their petition submitted to the Supreme Court on August 20th, Trump’s lawyers called Knight’s argument “fundamentally misconceived,” and warned that the previous court decisions would prevent government officials from opening personal social media accounts.
Even if the president used @realDonaldTrump to make official statements, his lawyers argued that the account itself remained private in much the same way his personal property was private. “[I]f a President makes an official speech on real property that he owns, he obviously does not thereby lose his right as a private property owner to exclude those with whom he disagrees,” the lawyers wrote.
However, the lawyer’s hypothetical fails to consider factors that could transform an event hosted on a public official’s private property into a public forum. For example, a press conference in Trump’s hotel could still be considered a public event because the president would have Secret Service agents in attendance. Similarly, if Trump were to use the police, instead of private security, to arrest or remove reporters from a political rally, that would make it a government event and such a move would violate the First Amendment.
Trump’s lawyers also challenged the notion that blocking users was a kind of state action because it did not allegedly involve government power.
“[Trump’s] use of Twitter’s blocking function (a function created by Twitter and made available to every user) cannot constitute state action within his personal account (which he has the power to use and control independent of his office),” Trump’s petition states, adding that the act of blocking must “itself involve the exercise of some power possessed by virtue of his position” to meet the state action requirement.
Following the filing of the petition, the Knight Institute published a response on their website in which they stressed the importance of public access to officials’ social media accounts.
“In recent months, we’ve seen how vital these accounts are to ensuring that people get the information they need to understand public policies related to everything from COVID19 to unemployment benefits,” said Katie Fallow, a Senior Staff Attorney at Knight Institute. “Blocking people from these forums denies them access to important information and deprives them of the opportunity to engage with the officials who represent them.”
July 31, 2020: Trump Sued Again For Refusing to Unblock Certain Twitter Users
The Knight First Amendment Institute at Columbia University is suing President Donald Trump for continuing to block several Twitter users from his @RealDonaldTrump account even after several federal courts ruled the practice unconstitutional.
Filed in United States District Court for the Southern District of New York on July 31, the suit claims that the president has continued to block two categories of individuals:
“[I]ndividuals who were blocked during Trump’s presidency but cannot specify, provide a copy of, the specific tweet that provoked the Defendants to block them.”
“[I]ndividuals who were blocked from the account before President Trump was inaugurated but whom Defendants continue to block today.”
According to the complaint, the President’s staff told the Knight Institute as recently as July 20nd that the President “does not intend to unblock persons who were blocked prior to his inauguration or who cannot identify a tweet that proceeded and allegedly precipitated the blocking.”
One of the users who still cannot access the president’s account, Donald Moynihan, a professor of public policy at Georgetown University, said that he often replied to the President’s tweets before he was blocked. Moynihan knows he was blocked on July 21, 2017 but, because he sometimes deletes older tweets, is not certain which tweet prompted the blocking.
“Plaintiffs bring this lawsuit to compel Defendants to unblock these other accounts and allow their users to participate once again in the public forum that Defendants established,” the complaint states.
The Knight Institute first challenged Trump’s practice of blocking his Twitter critics in 2017. The First Amendment-focused litigation group argued that the President’s personal Twitter account functioned like a public forum, and that blocking certain users from accessing his account constituted viewpoint discrimination.
In 2018, the U.S. District Court for the Southern District of New York sided with the Knight Institute and ordered the President to unblock users. After the president appealed the district court’s ruling, theU.S. Court of Appeals for the Second Circuit upheld the lower court’s decision.
June 10, 2020: Knight First Amendment Tells California Mayor to Stop Blocking Critics on Facebook
The Knight First Amendment Institute sent a letter to Irvine, California, mayor, Christina Shea, on behalf of a constituent who was blocked on her Facebook page.
Shea blocked the constituent after she criticized the Mayor’s posts about the protests against police brutality.
“Mayor Shea consistently uses her ostensibly personal Facebook account to communicate with the public about official government business, including responding in her official capacity to the ongoing protests of police brutality and sharing public health information about the COVID-19 pandemic,” Meenakshi Krishnan, Legal Fellow at the Knight Institute, said in a statement. “When public officials use personal accounts for official government business and open those accounts to the public at large, they cannot exclude people based solely on viewpoint. That’s what Mayor Shea has done here.”
Knight First Amendment Institute
March 24, 2020: Appeals Court Rejects Request to Review Trump Twitter Case
The U.S. Court of Appeals for the Second Circuit has declined to review its decision that President Donald Trump cannot block users on Twitter.
In July, a three-judge panel for the Second Circuit Court of Appeals ruled that Trump’s Twitter account, @RealDonaldTrump, constituted a public forum, and that his practice of blocking critics from accessing his account was tantamount to viewpoint discrimination. Following the ruling, Trump’s lawyers made a rare request for all of the court’s active judges to collectively reconsider the panel’s finding.
On March 23, seven of the nine members of the court voted to reject the president’s request.
“Twitter is not just an official channel of communication for the President; it is his most important channel of communication,” Judge Barrington Parker wrote for the majority.
Two judges took issue with the July ruling and voted for a rehearing. In their dissent, Judges Michael Park and Richard Sullivan wrote that the panel’s application of First Amendment public forum doctrine to @realDonaldTrump was “a poor fit,” and would discourage other public officials from using social media.
They argued that Trump’s decision to block certain users from his account could not be considered a “state action” because the ability to block a user is a feature available equally to every other user, and therefore was not a “right or privilege created by the State.”
Parker disagreed with the dissent’s reasoning, including the fact that barring public officials from blocking critics would somehow lead to self-censorship.
“In the past few months, the President has been posting on Twitter at more than three times the rate he was tweeting in 2017,” Parker wrote.
As to whether Trump’s tweets should be considered a form of “state action,” Parker pointed to a string of tweets the President published in January when he threatened to order a military attack against Iran.
“When the President tweeted about Iran he was speaking in his capacity as the nation’s chief executive and Commander‐in‐Chief. If that is not a ‘right or privilege created by the State’ it is difficult to imagine what might be. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President,” Parker wrote.
If Trump’s lawyers decide to appeal the decision, they will have to petition the U.S. Supreme Court for a hearing.
Ruling Politico Courthouse News
Representative Alexandria Ocasio-Cortez (NY-D) has publicly apologized to Dov Hikind, a former New York assemblyman and founder of Americans Against Anti-Semitism, for blocking him from her Twitter account one day before she was set to testify in federal court.
“I have reconsidered my decision to block Dov Hikind from my Twitter account,” Rep. Ocasio-Cortez said in a statement on Monday. “Mr. Hikind has a First Amendment right to express his views and should not be blocked for them.”
In July, the United States Court of Appeals for the Second Circuit ruled that President Donald Trump had violated the Constitution when he blocked critics from his @realDonaldTrump Twitter account.
“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,” the federal court ruled.
Read more about Knight First Amendment Institute’s lawsuit against President Donald Trump here.
Hikind took advantage of this ruling, and filed a civil lawsuit against Rep. Ocasio-Cortez for blocking him on Twitter.
Initially, Rep. Ocasio-Cortez’s lawyers attempted to have Hikind’s case dismissed on the grounds that she had blocked the assemblyman on her private account, @AOC, not her official account, @RepAOC. However, since Trump made a similar case and lost, this argument was unlikely to win in court.
According to The New York Times, there are at least two ongoing suits by critics who accuse the congresswoman of blocking them on Twitter. It is unclear how these cases differ from that of Hikind, except that Rep. Ocasio-Cortez has hinted that some of the users she chose to block had been harassing her.
“I reserve the right to block users who engage in actual harassment or exploit my personal/campaign account, @AOC, for commercial or other improper purposes,” she said on Monday.
The New York Times AP News
Sept. 3, 2019: Rep. Alexandria Ocasio-Cortez Faces Two Federal Lawsuits for Blocking Followers on Twitter
On July 10, 2019, New York assemblyman Dov Hikind and Republican congressional candidate Joseph Saladino filed separate lawsuits against Rep. Alexandria Ocasio-Cortez for blocking them on Twitter.
The lawsuits were filed soon after the U.S. Court of Appeals for the Second Circuit ruled that President Trump’s Twitter account, @realDonaldTrump, was a public forum, and as such, blocking critics was a violation of their First Amendment rights.
Both Hikind and Saladino hope that Ocasio-Cortez will be held to the same standard.
Hikind, who founded Americans Against Anti-Semitism, alleges that Ocasio-Cortez blocked him after he criticized her use of the term “concentration camps” to refer to the federal government’s detention facilities that hold migrant children.
“No one is above the law.” Hikind tweeted on Tuesday, July 9. “If the courts ruled POTUS can’t block people on Twitter, why would @AOC think she can get away with silencing her critics?”
Saladino was also blocked from the congresswoman’s account after “responding to one of her political posts.”
As with Knight First Amendment Institute v. Trump, which centered on the President’s personal account @realDonaldTrump and not on his official account, @POTUS, the lawsuits against Ocasio-Cortez refer to her personal Twitter account, @AOC.
“AOC regularly posts political messages of both a public nature,” Hikind said in the complaint. “Defendants [sic] twitter page was active with over 17 tweets and re-tweets between July 8, 2019 and July 9, 2019 alone. Each of these tweets involves a public interest and matters of official capacity, such as immigration, climate change, public housing, among other topics.”
In the court’s decision in the Trump Twitter case, Circuit Judge Barrington D. Parker noted that “not every social media account operated by a public official is a government account” and that the outcome of future decisions will be “informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”
On August 7, 2019, Ocasio-Cortez filed a response to Hikind’s complaint. She denied that her Twitter account @AOC is a public forum, that the account was used to make official announcements, and that her decision to block Hikind was driven by the content of his speech.
In a separate letter to Judge Frederic Block of the United States District Court for the Eastern District of New York on August 14, Ocasio-Cortez’s lawyers argued that the evidence used to prove that @realDonaldTrump was a public forum does not apply to @AOC. They argued that the president himself characterized @realDonaldTrump as an official account, had hired government employees to manage the account, and used the account to announce major policy initiatives. Ocasio-Cortez, they maintain, has not done any of the aforementioned activities.
“The facts in this case are significantly distinct from those in Knight,” the letter reads. “Ms. Ocasio-Cortez expressly denies that she uses the @AOC account for her public office or for official purposes.”
On August 28, 2019, the Knight First Amendment Institute sent a letter to Ocasio-Cortez asking her to stop blocking users from her @AOC account.
“Based on the facts as we understand them, the @AOC account is a ‘public forum’ within the meaning of the First Amendment. You use the account as an extension of your office–to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues related to government,” the letter says.
When Columbia University’s Twitter account tweeted about Knight’s letter, tagging @AOC in their post, the New York congresswoman responded quickly, arguing that her decision to block Hikind and others stemmed from “ongoing harassment.”
Neither Ocasio-Cortez’s response to Hikind’s complaint nor her lawyer’s letter to the judge made clear how Hikind’s behavior constitutes harassment. Offensive speech is protected by the First Amendment, even when it involves insulting or disparaging speech. It is a very high bar for a plaintiff to prove that speech involves a true threat or the kind of pervasive attacks that might constitute harassment.
Ocasio-Cortez’s Twitter thread also did not address the Knight Institute’s claim that @AOC should be treated as a public forum, a point she has repeatedly dismissed.
In an earlier statement about the lawsuits filed against Ocasio-Cortez, the Knight Institute acknowledged the challenges posed by online abuse and harassment, but insisted that public officials address them while also complying with the First Amendment.
A pre-motion conference is scheduled for September 5.
Dec. 5, 2019: State Senator Sued for Allegedly Blocking a Constituent from Public Facebook Page
Stace Nelson, a state senator in South Dakota, is facing a lawsuit after allegedly blocking a constituent on his public Facebook page.
On December 3rd, Jeff Church filed a complaint against Nelson in the U.S. District Court of South Dakota Southern Division, claiming that Nelson infringed on his right to free speech and his right to petition the government.
“Senator Nelson’s blocking of Church and deletion of comments written by Church from Senator Nelson’s Facebook page violate the First and Fourteenth Amendments because Senator Nelson’s actions impose content and viewpoint-based restrictions on Church’s ability to petition the government for redress of grievances,” the complaint said.
According to the lawsuit, Nelson blocked Church after he questioned the accuracy of one of the senator’s online posts. After a tense back and forth, Church claims that Nelson deleted his comments and told him to either “mind his manners or go someplace else to post [his] propaganda.”
Numerous courts have held that the social media accounts of public officials, when used to conduct public business, should be treated as limited public forums. These forums, much like town halls, can be reasonably limited in subject matter–for example, if a local government opened up a Twitter or Facebook account for discussion of an upcoming school referendum– but cannot be restricted by the viewpoint participants express.
Both President Donald Trump and Rep. Alexandria Ocasio Cortez (D-NY) have faced lawsuits for blocking users based on the content of their speech or the viewpoint expressed.
In an interview with the Argus Leader, Nelson denied that he ever blocked Church from his Facebook page, and called the lawsuit “frivolous.”
Church is asking for a declaratory judgment holding that Nelson violated his right to free speech, a permanent injunction against deleting or blocking his future Facebook comments, and an unspecified amount of compensatory and nominal damages.
U.S. News Argus Leader
Aug. 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 21, 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
Jan. 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
Aug. 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
Aug. 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.”
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.
Jan. 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.
Dec. 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.
Nov. 26, 2017: CNN Compiles All the President’s Tweets
What the President is saying in 140 characters or less.
Nov. 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
Nov. 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
Nov. 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.
Aug. 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.
Sept. 2, 2020: Q&A with Attorney Meenakshi Krishnan on the Future of Knight Institute v. Trump
On July 11, 2017, the Knight First Amendment Institute at Columbia University filed a complaint against President Donald Trump for blocking seven critics from his Twitter account, @realDonaldTrump.
The high-profile lawsuit drew attention to new legal questions arising from the popular use of social media. Though Trump’s account was technically personal, the Knight Institute argued that Trump overwhelmingly used it for official communication such as announcing policy decisions, and describing meetings with foreign leaders. In doing so, Knight postulated, Trump had opened a public forum, and as such, any attempt to block critics was an act of government censorship.
Multiple courts have ruled in favor of Knight, and have ordered Trump to unblock people from his account. Despite wide court consensus, the President has insisted he has a right to exclude certain users from his account, so much that he recently petitioned the United States Supreme Court to rehear the case.
First Amendment Watch staff writer Soraya Ferdman spoke to Meenakshi Krishnan, a legal fellow at the Knight First Amendment Institute, about the petition. One of the attorneys working on the case, Krishnan explains why she thinks many of Trump’s arguments are likely to fail should the case come before the Supreme Court.
July 11, 2019: Ballard Spahr: Second Circuit Affirms That President Trump’s Blocking of Opponents on His Twitter Account Violates First Amendment
Opinion | Public Forum
Ballard Spahr: Second Circuit Affirms That President Trump’s Blocking of Opponents on His Twitter Account Violates First Amendment
July 11, 2019
President Donald Trump
U.S. President Donald Trump awaits the arrival of Qatar’s Emir Sheikh Tamim bin Hamad Al-Thani at the White House in Washington, U.S., July 9, 2019. REUTERS/Carlos Barria
Reprinted with Permission from Ballard Spahr
The U.S. Court of Appeals for the Second Circuit yesterday became the third federal circuit court to hold that the interactive space of a government official’s social media account is subject to First Amendment strictures. In Knight First Amendment Institute at Columbia Univ., et al. v. Donald J. Trump, et al., No. 18-1691, 2019 WL 2932440 (2d Cir. July 9, 2019), the court unanimously affirmed a district court judgment holding that President Trump violated the First Amendment when he blocked from his Twitter account certain people whose viewpoints he did not like. Although social media blocking cases are relatively new—the first court decision was issued in 2017—there are several cases pending in federal courts around the country and others have settled out of court. The Knight opinion certainly will influence how such cases are resolved in the future. And given the widespread attention it has received since it involves President Trump, the opinion likely will cause many public officials to think twice before blocking people on social media.
The Knight case was filed by a handful of citizens who claimed that President Trump violated the First Amendment by blocking them from his Twitter account, @realDonaldTrump, after they posted critical commentary about the administration’s policies.
The parties stipulated to certain facts concerning President Trump’s use of social media and his reasons for blocking certain users, leaving only the legal question of whether, by blocking such users based on their viewpoint, the President violated the First Amendment. The district court held that he did.
On President Trump’s appeal, the Second Circuit unanimously affirmed, adding to a growing body of federal court decisions that have highlighted the increasing importance social media plays in today’s society. There are several notable takeaways from the opinion.
The opinion offers a summary framework for determining whether a government official’s social media page is a public forum subject to the First Amendment. It instructs that courts should consider “how the official describes and uses the account; to whom features of the account are made available; and how others, government officials and agencies, regard and treat the account.” Applying this framework, the court had no trouble finding that the interactive portion of President Trump’s Twitter account constitutes a public forum and that he violated the First Amendment by blocking individuals from the account based on their viewpoints.
The court also resolved procedural questions of standing and mootness in favor of the blocked users. President Trump argued that blocking the plaintiffs from his Twitter account did not deprive them of their right to free speech under the First Amendment, citing the plaintiffs’ ability to engage with his Twitter account using certain “workarounds” such as “creating new accounts, logging out to view the President’s tweets, and using Twitter’s search functions to find tweets about the President posted by other users with which they can engage.” The court disagreed and made clear that “burdens to speech as well as outright bans run afoul of the First Amendment.” The court also concluded that an institutional plaintiff, a would-be reader of the blocked social media users’ posts, has standing to sue. It also held that the President’s act of unblocking the plaintiffs after the court issued its declaratory judgment did not moot the case.
Finally, the court observed that, “as a general matter, social media is entitled to the same First Amendment protections as other forms of media.” The reasoning in Knight will no doubt be applied by courts in cases involving public officials blocking citizens from their accounts on other social media platforms, such as Facebook and LinkedIn.
Ashley I. Kissinger and J. Matthew Thornton, together with the ACLU and Ballard Spahr attorney Mack Wilding, represent the plaintiff in Landman v. Scott, No. 1:19-cv-01367 (D. Colo.), a social media blocking case pending against Colorado State Senator Ray Scott.
Attorneys in Ballard Spahr’s Media and Entertainment Law Group are dedicated to supporting the free press and the First Amendment rights of groups and individuals. The Group helps clients navigate challenging media law issues across all platforms and industries.
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
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 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.”