Trump Brings Bid To Block Twitter Critics To Supreme Court

Government argues that Trump's blocking decisions don't violate the First Amendment

August 20, 2020

President Donald Trump's bid to block critics on Twitter reached the Supreme Court on Thursday.

The Department of Justice asked the High Court to review a lower court ruling that held that the First Amendment bars Trump from blocking critics from his @realDonaldTrump account.

Trump's liberal use of Twitter has been a defining part of his presidency, though his freewheeling use of the platform is increasingly constrained. Twitter has lately restricted or removed several of the president's tweets, ostensibly for misinformation or copyright violations, while the federal courts have ruled that he cannot lawfully block detractors or internet scolds. Trump isn't the only politician to face legal blowback for online behavior: Rep. Alexandria Ocasio-Cortez (D., N.Y.) settled a lawsuit in November 2019 with Brooklyn politician Dov Hikind, who sued the congresswoman after she blocked him on Twitter.

Acting solicitor general Jeffrey Wall told the justices in Thursday's filing that Trump's blocking decisions are purely private choices that are not subject to constitutional rules. He also warned that the vitriol common to social media could deter other users or politicians from communicating on Twitter.

"The court of appeals's holding may have the unintended consequence of creating less speech if the social media pages of public officials are overrun with harassment, trolling, and hate speech, which officials will be powerless to filter," Wall wrote.

The Second U.S. Circuit Court of Appeals ruled that Trump's blocking practices amount to unconstitutional viewpoint discrimination in July 2019. The court characterized the @realDonaldTrump handle as an "official vehicle for governance," noting that Trump operates the account with the assistance of senior aides and has communicated major policy decisions from the handle, such as his decision to ban transgender military personnel.

The government argued that this ruling was wrong for several reasons. While Trump's account may sometimes broadcast official business, it is fundamentally a personal account, Wall wrote. Trump created the handle in 2009 when he was a private citizen and will presumably continue using it when he leaves office. In contrast, the @POTUS and @WhiteHouse accounts he controls exist only to promote his official activities, and he will pass those handles along to his successor. Crucially, while his statements on Twitter often concern government affairs, blocking a specific user is an independent and private decision.

The DOJ also argued that the Second Circuit was wrong to treat comment threads on Trump's tweets as a public forum, or a space where First Amendment protections apply. That's because a private company, not the government, hosts the platform and controls its features.

"The account has simply persisted as a private platform for the president's speech, not as a forum created by the government for the public to speak to the president and among themselves," Wall wrote.

Seven Twitter users blocked from the @realDonaldTrump account brought the lawsuit in 2017. One of the plaintiffs is Dr. Philip Cohen, a sociology professor at the University of Maryland. Trump blocked Cohen in June 2017 after the professor replied to one of Trump's tweets with a meme denouncing him as an authoritarian. The tweet, which mirrors those of his co-plaintiffs, was one of six replies Cohen sent the @realDonaldTrump account that day, and the lawsuit describes Cohen as an "active participant" in comment threads below the president's tweets.

Wall said the lower court ruling undermines the ability of public officials to "insulate their social-media accounts from harassment, trolling, or hate speech."

Columbia University's Knight First Amendment Institute represents the plaintiffs. The institute stated on Thursday that there is no reason for the Supreme Court to get involved with the dispute.

"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," Knight Institute executive director Jameel Jaffer said. "The Supreme Court should reject the White House's petition and leave the appeals court's careful and well-reasoned decision in place."

A federal trial judge who ruled for the plaintiffs drew a distinction between blocking and "muting," a separate Twitter function. Since a muted user still has unfettered access to the relevant account, the judge said muting is an acceptable practice.

The justices could decide whether to take the case this fall, teeing up oral arguments in spring 2021. The case is No. 20-197 Trump v. Knight First Amendment Institute.

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