WASHINGTON — The Trump administration today petitioned the U.S. Supreme Court to review a decision by the U.S. Court of Appeals for the Second Circuit holding that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The Knight First Amendment Institute at Columbia University filed the case in 2017 on behalf of seven people who were blocked from the @realDonaldTrump account after they criticized the president in comment threads associated with that account.
“This case stands for a principle that is fundamental to our democracy and basically synonymous with the First Amendment: government officials can’t exclude people from public forums simply because they disagree with their political views,” said Jameel Jaffer, the Knight Institute’s Executive Director, who argued the case before the Second Circuit. “The Supreme Court should reject the White House’s petition and leave the appeals court’s careful and well-reasoned decision in place.”
The district court ruled in May 2018 that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president is therefore barred from blocking speakers from that account on the basis of viewpoint. A unanimous three-judge panel of the Second Circuit affirmed that ruling in July 2019 and in March of this year the Second Circuit rejected a request by the Trump administration for a full-court review of that ruling. Writing for the court, Judge Barrington D. Parker noted, “The critical question for First Amendment purposes is how the President uses the Account in his capacity as President,” and concludes, “These tweets are published by a public official clothed with the authority of the state using social media as a tool of governance and as an official channel of communication on an interactive public platform.”
“Public officials across the country now use social media as their main means of communicating with their constituents,” said Katie Fallow, Senior Staff Attorney at the Knight Institute. “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 Covid-19 to unemployment benefits. 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.”
After the Knight Institute prevailed in the district court, the White House unblocked the plaintiffs as well as dozens of others whom the president had blocked on the basis of viewpoint. The White House refused, however, to unblock two categories of individuals: those who cannot specify the tweet that provoked the president to block them, and those who were blocked before the president took office. Late last month, the Knight Institute filed a second lawsuit against the president and his staff for continuing to block these critics. Read more about this related case here.
The Second Circuit was the second appellate court in the country to hold that a public official’s social media account can sometimes be a public forum under the First Amendment. In January of last year, in a case also argued by the Knight Institute, the U.S. Court of Appeals for the Fourth Circuit held that a local public official had violated the First Amendment by blocking a constituent from her Facebook page.
In a related development, the Knight Institute sent a letter last month to the U.S. Army and U.S. Navy Recruiting Commands demanding that they cease banning individuals on the basis of viewpoint from their esports Twitch channels. Subsequently, the Army and Navy announced that they would unban the banned users and revise their streaming policies and procedures. Read more about this advocacy work here.
A copy of the government's petition is here.
Read more about Knight Institute v. Trump here.
Lawyers on the case include, in addition to Jaffer and Fallow, Carrie DeCell, Alex Abdo, and Meenakshi Krishnan of the Knight First Amendment Institute at Columbia University, and Jessica Ring Amunson, Tassity Johnson, and Tali R. Leinwand of Jenner & Block.
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