[guest post by Dana]
We’ve argued ad nauseam about President Trump and his compulsive tweeting. Debates have included whether the dangers of someone in his position (and with his disposition) publicly opining with little restraint is outweighed by the claimed benefit of having the President of the United States communicate directly to the American people. While his advisors and members of the GOP have urged him to refrain from using the platform, he persists. And after two and a half years of this president tweeting about, well, everything that pops into his head, we all know he’s not just tweeting about innocuous things like the swampy weather in D.C. Far from it. He regularly tweets about global events, his agenda, policies, issues warnings to foreign leaders, engages in dangerous games of one-upmanship with thug dictators, attacks the media and members of the media, attacks Democrats, Republicans, and everything and everyone else in between. And the voluminous amount of tweeting about so many issues, opened him up to condemnation, ridicule and all manner of foul comments. As a result, President Trump blocked his critics.
Today the U.S. appeals court said Trump had violated the Constitution, calling it “unconstitutional viewpoint discrimination”:
U.S. President Donald Trump violated the Constitution by blocking people whose views he disliked from his Twitter account, a federal appeals court ruled on Tuesday.
In a 3-0 decision, the 2nd U.S. Circuit Court of Appeals in Manhattan said the First Amendment forbids Trump from using Twitter’s “blocking” function to limit access to his account, which has 61.8 million followers.
“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,” Circuit Judge Barrington Parker wrote, citing several Supreme Court decisions.
Tuesday’s decision upheld a May 2018 ruling by U.S. District Judge Naomi Reice Buchwald in Manhattan, which prompted Trump to unblock some accounts.
The Justice Department has called her ruling “fundamentally misconceived,” saying Trump used Twitter to express his views, not to offer a public forum for discussion.
Parker, however, said Trump’s account bears “all the trappings of an official, state-run account” and is “one of the White House’s main vehicles for conducting official business.”
Last year, the Justice Department argued that the ruling was “fundamentally misconceived,” and that since becoming the president, Trump was simply continuing to use his Twitter account in the same way as he always had: sharing his thoughts and views about any number of topics. The Justice Department also asserted that President Trump’s account belonged to him “in his personal” capacity” and “not the control of the government,” thus:
… when he exercises the power enjoyed by all Twitter users to block other users from their own accounts, he is not using any authority belonging to or conferred on him by the federal government,” the Justice Department’s legal brief said.
The appeals court also took into consideration that it was the President’s own spokesman, who confirmed that President Trump’s tweets are “official statements”:
“The President is the President of the United States, so they’re considered official statements by the President of the United States.”
Justice Department spokeswoman Kelly Laco said in a statement to NPR, “We are disappointed with the court’s decision and are exploring possible next steps.” President Trump, however, has not tweeted about the ruling. Yet.
ADDED: I’m adding this piece by David French, wherein he explains how the 2nd U.S. Circuit Court of Appeals got it wrong in their ruling. I’m copying heavily from it as it’s insightful:
Boiled down to its essence, the court’s reasoning contained two key elements. First, it ruled that Trump’s Twitter account represents an outlet for official communications and interactions that is controlled by President Trump. Second, it found that under these circumstances, Trump’s decision to block users represents impermissible state action undertaken to suppress dissent.
The first element is fundamentally mistaken. By no traditional legal measure of “control” does Trump control his Twitter account. Twitter owns and controls his account, and he has no legal right to wrest control of it from Twitter. The court’s misunderstanding of the platform is made evident by this deeply flawed analysis:
The fact that government control over property is temporary, or that the government does not “own” the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52 (1975) (holding privately‐owned theater leased to and operated by city was public forum). Temporary control by the government can still be control for First Amendment purposes.
There is no “control” at all, temporary or otherwise. When a politician rents a theater or other private venue, there is typically an exchange of money and a rental agreement that explicitly grants enforceable legal rights to access the property and control others’ access to the property, and — critically — limits the landlord’s power during the course of the rental.
Compare that level of control to the absolute lack of rights the user has under Twitter’s terms of service:
We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable.
There is no exchange of money, the user has no right to the platform, and Twitter can not only eliminate your access entirely but censor any single tweet. If it chooses, it can even remove Trump’s ability to block, mute, or take any other action. And that’s not all — when you use Twitter, your speech isn’t even purely “your” speech any longer. Twitter grants itself the right to your communications, too…
Writing in response to the trial court’s ruling against Trump last year, law professor Greg Dolin compared Twitter to a radio call-in show that is hosting a government official as a guest. The politician has no right to be on the show, the host can send the politician packing at any time, and the host has ultimate control over not only the politician’s presence but also any callers’ speech. In other words, Trump remains on Twitter entirely at Twitter’s discretion.
In that circumstance, there is no “public forum.” There is instead a public official using a private platform to attempt to amplify his specific message, with the permission of the entity that controls the platform. The court’s ruling, in this circumstance, represents government intervention in Twitter’s control of its own service. The court is overriding the permissions Twitter gave its own user.
Moreover, the court gives short shrift to Trump’s own free-speech rights under the government-speech doctrine. Again, to borrow one of Professor Dolin’s analogies, “If a politician is holding a rally in a park (a traditional public forum), it doesn’t follow that he must permit critics to share the stage with him.” The Twitter thread beneath any tweet can undermine or amplify the president’s chosen message. So long as Twitter grants the user the ability to regulate his or her Twitter replies, then that regulation is an integral part of the user’s expression…
Read the whole thing.
(Cross-posted at The Jury Talks Back.)