President Trump Loses — Government Can’t Block Critics on Social Media

By Camille Fischer

In a long-awaited ruling, the Second Circuit has found that the replies section on President Trump’s Twitter @realDonaldTrump is a public forum and that the President cannot block his critics from reading his tweets or participating in the forum merely because his dislikes the views they express. This ruling, along with two previous federal appellate court decisions, directly affects thousands of government social media accounts across the country. Government officials and agencies who operate their social media accounts as public or non-public forums must not delete comments or block users because the officials disagree with the viewpoints expressed.

The President and his advisors had admitted earlier in the case that they blocked the plaintiffs because they disagreed with the viewpoints they expressed in their replies. As a result, the case addressed only the issue of viewpoint discrimination, and not any other reason for blocking, such as harassment.

The Second Circuit made several important findings.

First, the court found that @realDonaldTrump is in fact controlled and maintained by the government, and used to conduct official governmental business. The Court relied on the bio in the @realDonaldTrump profile and other public statements and documented how he used the account to announce changes in his cabinet, changes in government policy positions, and even informing the public about talks with North Korea about nuclear disarmament. In finding that the blocking was state, and not private, action, the court rejected the government’s argument that the President still used the account as a private person, and found it irrelevant that he originally started the account as a private citizen.

Second, the Court found that the interactive components of @realDonaldTrump comprise a public forum, that is, a space generally open, indiscriminately, for the speech of the public, and in which viewpoint discrimination is prohibited.

Next, the court rejected the argument that workarounds existed to allow blocked users to read and reply to the @realDonaldTrump feed in any event, finding that such workarounds nevertheless hindered the blocked users’ ability to participate in the forum, a burden on their speech that “runs afoul of the First Amendment.”

Finally, the Second Circuit rejected the government’s argument that the entire Twitter page for @realDonaldTrump is government speech, in essence, a claim that the President is speaking by curating his reply feed to express his own message. When the government itself speaks, it may pick and choose the viewpoints it wants to express. The court found that the replies, mentions, retweets, and likes were instead the speech of the multiple users who post them, not the government. The court’s ability to distinguish the different functionalities of Twitter and social media pages is fundamental to preserving the public’s ability to speak freely as the government continues to adopt new technologies for communicating with the public.

This case sends a strong message to government officials across the country that the First Amendment will in most cases apply to the public’s interactions on the officials’ social media pages. At EFF, we’ve received numerous complaints from across the country and across the political spectrum from constituents who’ve been blocked from receiving and/or commenting upon officials’ and agencies’ posts because of political disagreements or criticism.

We’ve also seen that government use of Twitter, Facebook, and other social media platforms is widespread—and that when local and state governments start limiting who can see government messages, the consequences can be disastrous. Our briefs for this case in both the district court and Second Circuit laid out numerous examples of how government officials and agencies use social media during emergencies, and later in disaster recovery. For example, in Northern California, local fire departments have taken to Twitter to alert the public about evacuations and the control of California’s deadly wildfires. Users who are blocked risk missing out on the most up-to-date information.

EFF has also been active in other government social media cases, challenging a multitude of speech discrimination practices.

We are representing People for the Ethical Treatment of Animals (PETA) in a case against Texas A&M University regarding the school’s automatic and manual deletion of PETA’s comments and posts on the A&M Facebook page – all because A&M wanted to silence a PETA campaign to end a dog lab at A&M that breeds and experiments on dogs with muscular dystrophy. By deleting these comments, A&M was engaging in viewpoint discrimination, which is illegal in any forum, and in content discrimination, which is illegal in forums that the government specifically creates as a place for speech. We are also participating in an Oklahoma state court case, Holcomb v. Hickman, a challenge to a local official’s deletion of comments in a city Facebook group.

EFF also submitted an amicus brief in Robinson v. Hunt Co., Texas, a case in the 5th Circuit that decided that deleting a critic’s comment on the Sheriff’s Facebook page, even though the deletion followed a policy set by the Sheriff’s office, is illegal viewpoint discrimination.

We’re waiting to see how the government responds to the @realDonaldTrump case. The Department of Justice could appeal to the Supreme Court, but at this stage, the case law is not on the government’s side. Further, we are waiting to see if the President finally unblocks all of his critics, not just the named plaintiffs in the Knight case.

The case against President Trump isn’t the first to find that government officials cannot block their critics on social media, but it is certainly the loudest. Courts must hold all elected officials, including the President, to the same restrictions against limiting speech online that have long been upheld in the physical world. That will allow everyone to speak freely, no matter the medium.

Camille Fischer is a Frank Stanton Fellow working on EFF’s free speech and government transparency projects. Camille came to EFF from D.C. where she worked in the Obama White House and in the Department of Commerce advocating for civil, human rights, and due process protections in national security and law enforcement policies. She also ran projects to increase consumer security and privacy, like the move to chip cards (sorry not sorry), and has war stories about ECPA Reform, MLATs, and encryption. Camille graduated from Georgetown University Law Center and the University of Georgia (Go Dawgs). She takes pics and bakes pies.

This article was sourced from EFF.org

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