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. On May 23, 2018, U.S. District Judge Naomi Reice Buchwald ruled that Trump may not legally block users on Twitter because doing so violates a right to free speech; @realDonaldTrump unblocked the plaintiffs but not others who are blocked and the Justice Department is appealing the ruling. Meanwhile, other cases are percolating through the courts as well, with one to be heard by the U.S. Court of Appeals for the Fourth Circuit involving a citizen who was blocked by a public official in Virginia from her Facebook account. For news, analysis, history & legal background read on. 

News & Updates

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.

AP> 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.

The 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> Politico>

Knight Institute Press Release> 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.”

SF Weekly>
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.

Newsweek>
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.

Newsweek>
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.

Courier-Journal>
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.”

Memorandum and Order> Knight First Amendment Institute Press Announcement> Reuters> NBC News>

Judge says President Trump cannot block Twitter users from CNBC.

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.

CNN> Reuters>
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.

Academe Blog>
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.

Insider Louisville>
November 26, 2017: CNN Compiles All the President’s Tweets

What the President is saying in 140 characters or less.

CNN>
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.

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>

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.”

Plaintiffs’ Cross-Motion For Summary Judgement > Complaint> Knight Letter>

___

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.

___

Davison v. Loudoun County Board of Supervisors, U.S. District Court for the Eastern District of Virginia, July 25, 2017. (The case is scheduled to be heard by the U.S. Court of Appeals for the Fourth Circuit.)

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.”

The case will be heard by the U.S. Court of Appeals for the Fourth Circuit, making it the first case on Facebook blocking by public officials to be heard by a federal appeals court. Davison, who had represented himself before the U.S. District Court, will be represented on appeal by the Knight First Amendment Institute, which had filed an amicus brief in the case in November 2017. The Knight Institute is also suing President Trump (see the story elsewhere on this page) for his blocking of Twitter followers.

Justia> Knight Amicus Brief>

___

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>

Analysis & Opinion

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.

Law360>
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?”

Bloomberg>
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.”

Daily News>

 

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>

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