Lawyers from the Department of Justice have moved for summary judgment in a lawsuit brought by critics who were blocked by President Trump on Twitter. In its motion filed October 13th, the DOJ claims that the President’s personal account is not a public forum for First Amendment purposes. The lawsuit, brought last July by the Knight First Amendment Institute at Columbia and seven individual Twitter users, claims that blocking the users from following President Trump’s account constitutes a viewpoint-based restriction on their participation in a public forum.
Plaintiffs argue that President Trump’s personal account, @realDonaldTrump, is a public forum because Trump has used it since his inauguration as an “instrument of the presidency,” operated “almost exclusively as a channel for communicating with the public about his administration.” “President Trump’s tweets have become an important source of news and information about the government, and the comment threads associated with the tweets have become important forums for speech by, to, and about the President,” the lawsuit argues. But in their motion for summary judgment, President Trump’s lawyers assert that his blocking of individual users was not state action, because Twitter is a private platform and the President uses it on the same terms of every other private user, not through the exercise of any special powers conferred on him by federal law. Even assuming that President Trump’s use of the account is state action, the lawyers argue, it is government speech not subject to forum analysis, since the President “uses the account for his speech, not as a forum for the private speech of others.”
The summary judgment motion also argues that there is no First Amendment right to follow President Trump’s personal account on Twitter, and even if such a right existed, it wouldn’t be at issue because the plaintiffs can still view all his tweets online without logging into Twitter. President Trump blocked the individual plaintiffs in May and June of this year, following critical tweets they posted in reply threads to tweets from his @realDonaldTrump account.
For example, plaintiff Rebecca Buckwalter, a writer and legal analyst, was blocked after responding to a June 6 tweet in which the President posted, “Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance winning WH.” “To be fair you didn’t win the WH: Russia won it for you,” Buckwalter replied. She discovered she had been blocked from the @realDonaldTrump account shortly thereafter, leaving her unable to view President Trump’s tweets from her account or to view or participate in the comment threads associated with them.
Some constitutional law scholars, such as Harvard Law School’s Noah Feldman, have rejected the idea that such blocking raises free speech concerns. “There’s no right to free speech on Twitter,” Feldman has said. “Trump’s account is a stream of communication that’s wholly owned by Twitter, a private company with First Amendment rights of its own.” But according to the Knight Institute, a non-profit established by Columbia University in 2016, the “key question is whether the president has opened up a forum for expressive activity to the public.”
The complaint also names as defendants White House Acting Communications Director Hope Hicks, White House Press Secretary Sarah Huckabee Sanders, and White House Social Media Director Daniel Scavino. The lawsuit, No. 1:17-cv-05205, is before Judge Naomi Reice Buchwald for the United States District Court for the Southern District of New York.
“Critics Blocked from President’s Twitter Account File Suit,” Knight First Amendment Inst. at Columbia Univ. (July 11, 2017), https://knightcolumbia.org/news/critics-blocked-presidents-twitter-account-file-suit.
Complaint, Knight First Amendment Inst. v. Trump, No. 1:17-cv-05205 (S.D.N.Y. July 11, 2017), https://assets.documentcloud.org/documents/3892179/2017-07-11-Knight-Institute-Trump-Twitter.pdf.
Daniel Funke, “Knight Institute Sues President Trump Over Twitter Blocking,” POYNTER (July 11, 2017), https://www.poynter.org/news/knight-institute-sues-president-trump-over-twitter-blocking.
Lincoln Caplan, “Should Facebook and Twitter Be Regulated Under the First Amendment?,” WIRED (Oct. 11, 2017), https://www.wired.com/story/should-facebook-and-twitter-be-regulated-under-the-first-amendment/.
Memorandum of Law in Support of Motion for Summary Judgment, Knight First Amendment Inst. v. Trump, No. 1:17-cv-05205 (S.D.N.Y. Oct. 13, 2017).
Stipulation, Knight First Amendment Inst. v. Trump, No. 1:17-cv-05205 (S.D.N.Y. Sept. 29, 2017).