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Trump Twitter Court Decision Not A Sweeping “Don’t Block Me Bro” Rule

Trump Twitter Court Decision Not A Sweeping “Don’t Block Me Bro” Rule

Ruling that Trump violated constitutional rights of people he blocked limited to uniquely public nature of Trump’s Twitter account, but now AOC has been sued as well for blocking people.

Earlier this week, the Court of Appeals for the 2d Circuit ruled against Donald Trump in a lawsuit asserting that his blocking some people from viewing his Twitter account was unconstitutional.

For those of you who are not on Twitter, blocking someone prevents them not only from viewing your Twitter feed or tweeting at you. It’s a double-barreled protection. If you just don’t want someone tweeting nasty stuff at you, you can mute them; that allows them to see your feed, but you don’t see what they tweet.

There are some simple ways around a block. For example, you can view the person’s Twitter feed in “incognito” mode in Chrome browser, and presumably other browsers have similar options. So a block is not a block, but to get around it, you have to take some extra steps.

The Court Opinion was fairly specific to a situation where a government official uses a personal Twitter account as a de facto official account.

The salient issues in this case arise from the decision of the President to use a relatively new type of social media platform to conduct official business and to interact with the public. We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms. We do conclude, however, that 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.1

The Court repeatedly emphasized the uniquely public nature of Trump’s Twitter account:

The public presentation of the Account and the webpage associated with it bear all the trappings of an official, state‐run account. The page is registered to Donald J. Trump “45 14 th President of the United States of America, Washington 15 D.C.” Id. at 54‐55. The header photographs of the Account show the President 16 engaged in the performance of his official duties such as signing executive 17 orders, delivering remarks at the White House, and meeting with the Pope, heads of state, and other foreign dignitaries.

* * *

The President and multiple members of his administration have described his use of the Account as official. The President has stipulated that he, with the assistance of Defendant Daniel Scavino, uses the Account frequently “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his Administration he believes to be unfair.” Id. at 56….

Finally, we note that the National Archives, the agency of government responsible for maintaining the government’s records, has concluded that the President’s tweets are official records.

* * *

Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry. The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account. But these are concerns for other cases and other days and are ones we are not required to consider or resolve on this appeal.

The Court held that Trump, acting as a government official through his Twitter account, violated the constitutional rights of the people he blocked:

We conclude that the evidence of the official nature of the Account is overwhelming. We also conclude that once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.

* * *

The government’s response is that the President is not acting in his official capacity when he blocks users because that function is available to all users, not only to government officials. However, the fact that any Twitter user can block another account does not mean that the President somehow becomes a private person when he does so. Because the President, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him.

* * *

Once it is established that the President is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment.

* * *

The government’s reply is that the Individual Plaintiffs are not censored because they can engage in various “workarounds” such as creating new accounts, logging out to view the President’s tweets, and using Twitter’s search functions to find tweets about the President posted by other users with which they can engage. Tellingly, the government concedes that these “workarounds” burden the Individual Plaintiffs’ speech….

Accordingly, we hold that the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech.

While the Court repeatedly tried to narrow the ruling, there is a lot of loose language in there. It seems to be premised on Trump blocking people who expressed disagreement with him. What about people who were abusive? Or people Trump just decided to block before they expressed disagreement? That’s unfortunately common on Twitter, so called “block lists.” I constantly find myself blocked from people I’ve never heard of or never interacted with.

Take the principles of the Court opinion outside the Twitter context. Does a politician holding a forum have to allow everyone in?

And extend those principles to other politicians, like Alexandria Ocasio-Cortez, who has been sued by a multiple political rivals and critics for blocking them on Twitter.

It’s hard to see how AOC’s use of Twitter differs from Trump’s. Let’s see if the courts apply these principles across the board.


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Hmmm. The Court seems to have established that DJT’s Twitter account is official, and that therefore . . . what, that automatically makes it a public forum? Since when have Presidents been required to conduct “dialogs”? A century and a half ago a President might give a short speech while standing on the back of a railway car. No dialog implied there. Later, a President might give a speech, or conduct a “fireside chat” . . . still no dialog. President Peanut tried a phone-in thing which would qualify as a dialog, but only that once, and it’s never been repeated. Of course the courts have a tendency to find DJT to be a special case, but I think somebody’s overdoing it here.

    Milhouse in reply to tom_swift. | July 14, 2019 at 3:15 pm

    Presidents are not required to hold dialogs. And the president’s own tweets are not a public forum — he is not required to allow people to tweet in his name. But the replies, which effectively amount to a “comment section” much like this one, is by definition a public forum, and since it’s an official government account that section is controlled by the first amendment. He can’t block people from commenting in that section because of the opinions they’ve expressed, just as he can’t block them from the comment section of an official government web site, if there is one.

Subotai Bahadur | July 12, 2019 at 11:05 pm

Making the assumption that DJT’s Twitter account is a public utility as the courts have ruled; there is still the problem that AOC is a Leftist and therefore outside and above law and court rulings. Such is America today.

Subotai Bahadur

    If this ruling establishes that FaceBook is a public utility, then doesn’t it then also establish that it can be regulated?

    I’m believing more and more that Facebook (and the rest of the socials) will be broken up as a necessary step for preserving the integrity of the 1st amendment. And it’s not just about the 1st amendment either.

    Google, Amazon, Facebook and a few others are conglomerates housing growing networks using the combined scale to drive out competition. Their government contract businesses should be separated and spun off i.g. They are defacto government spying operations using their massive data mining capabilities to empower government control over every aspect of our lies. And we are paying for it. Because it is “free”.

    Even Orwell didn’t foresee that we would be paying for it ourselves even before the massive government subsidies. How do you fight this monster when our government has lost control over the bureaucracy while politicians become wealthy as servants of the Masters of the Universe?

      Milhouse in reply to Pasadena Phil. | July 14, 2019 at 3:17 pm

      If this ruling establishes that FaceBook is a public utility

      Stop right there. It does no such thing, therefore the rest of your comment is invalid.

      The ruling is specifically limited to the public comment sections of official government accounts.

I can live with it one way or the other, but not both.

In my opinion, the court has required the POTUS to furnish a platform to others, merely because he uses his own platform. This seems wrong, to me. Other people are free to publish their own tweets on their own accounts, and say whatever they want. This ruling is the equivalent of allowing a heckler up on the podium at a rally.

However, if the courts will apply the rule equally to AOC and others, I can at least have a sense of equal treatment before the laws.

If a conflicting ruling issues, then the Supreme Court will eventually be pulled in to choose.

    tom_swift in reply to Valerie. | July 12, 2019 at 11:44 pm

    If a conflicting ruling issues, then the Supreme Court will eventually be pulled in to choose.

    Thus giving Chief Traitor Roberts another opportunity to work his magic.

      Valerie in reply to tom_swift. | July 13, 2019 at 11:49 am

      Cases come before the US Supreme Court because they are difficult. Usually, both sides have managed to make a point. Your failure to recognize this reality does not make whoever you don’t like today a traitor.

      That word is leftist-level hyperbole.

    Milhouse in reply to Valerie. | July 14, 2019 at 3:28 pm

    the court has required the POTUS to furnish a platform to others, merely because he uses his own platform.

    No, it hasn’t. But having decided to provide a platform for the public, on an official government account, he cannot exclude certain people from it simply because he doesn’t like their views.

    This ruling is the equivalent of allowing a heckler up on the podium at a rally.

    No, it isn’t. It’s the equivalent of holding a rally on public property, and allowing anyone to hold up any sign they like — except ones that criticize the president.

    However, if the courts will apply the rule equally to AOC and others

    They will do so only if those people are also running official government accounts. Private accounts are not subject to the first amendment. Trump’s account was private until he chose to turn it into a government account, by using it to conduct official business and by assigning government employees, on government time, to post on it and to manage it. Had he not done so this entire case would not have started.

JusticeDelivered | July 13, 2019 at 6:14 am

I bet that AOC has trouble dealing with people noticing that she is flaky, stupid and arrogant.

    oldgoat36 in reply to JusticeDelivered. | July 13, 2019 at 6:34 am

    She is narcissistic in a lot of ways. She definitely cannot handle criticism in any way. When she is ridiculed for the stupid things she says she goes on deflection mode. She has a way out sized ego and believes the hype the media has pushed about her.

    If she is forced to open up her twitter and unblock people (which truly is a stupid ruling being that mob rules then apply and it isn’t civic discourse, though the intent is probably just to make Trump give up his account) she will go nuts. She won’t handle it well at all.

I think this is less of an issue than Mark Zuckerberg threatening to censor Trump’s Twitter account. Doesn’t this ruling reinforce Trump’s rights as POTUS to post whatever he wants?

    zennyfan in reply to Pasadena Phil. | July 13, 2019 at 2:18 pm

    Zuckerberg is Facebook, not Twitter.

    Milhouse in reply to Pasadena Phil. | July 14, 2019 at 3:31 pm

    Doesn’t this ruling reinforce Trump’s rights as POTUS to post whatever he wants?

    No, it doesn’t. The platform belongs to Twitter, not to the government. Twitter can shut it down, censor it, or do whatever it likes with it. The account is a government account, but not a public forum; the president controls what goes on it. The comment section of the account is a public forum; state actors may not censor it, but private actors may.

Twitter must also be legally barred from blocking anybody from posting responses to Trump’s tweets for any reason at all. Ruling that Trump can’t block responses but that Twitter can is absurd.

    DaveGinOly in reply to stablesort. | July 13, 2019 at 5:40 pm

    Twitter is a private company and users are bound by the terms of service (TOS). Thus, if someone threatens Trump via his Twitter account, Twitter can ban that individual because of the violation of the TOS, and can do so because the action is not government action (and therefore does not violate the 1st Amendment, which only functions against government).

    DJT being barred from blocking Twitters users should not interfere with Twitter’s enforcement actions of its TOS.

    Milhouse in reply to stablesort. | July 14, 2019 at 3:33 pm

    Trump, when acting in his official capacity, is a state actor. Scavino, who is a federal employee hired specifically to do this, is certainly a state actor. Twitter is a private actor, not bound by the first amendment.

Christopher B | July 13, 2019 at 8:06 am

David French at NR posted a good short article on why this ruling is entirely wrong for ignoring Twitter’s TOS which give it complete control over posts and user actions. It essentially obliterates Twitter’s TOS wrt public officials.

texansamurai | July 13, 2019 at 8:39 am

so some twit in a robe is now going to determine who may and may not post (speak) on POTUS’s twitter account

imagine, if in real life, being REQUIRED to listen to (or read)the comments of every leftist, kid, of whack job who decides to speak(post)–ridiculous on its face–he’s not divulging national secrets or classified info (as was hillary)for heaven’s sake

hope he just decides to ignore this ruling entirely or, perhaps, claim executive privelege? can’t see how refusing to listen to (or read) the comments/thoughts of a bunch of blithering idiots can be a violation of THEIR constitutional rights

come on

    Milhouse in reply to texansamurai. | July 14, 2019 at 3:35 pm

    Nobody’s forcing him to read comments he doesn’t want to. But he can’t censor them from a designated public forum. That’s black-letter law.

Close The Fed | July 13, 2019 at 9:42 am

So SCOTUS flaunts its ignorance again. Pres. Trump has two twitter accounts. One is @RealDonaldTrump, the other, if I recall correctly, is @POTUS45.

Trump used his personal account with his OWN name on it, during the campaign, because it was his and he already had millions of followers, again if I recall correctly.

So the @POTUS45 is the actual official account.

As far as all the info on the @RealDonaldTrump profile page, that stuff can be changed, and often is changed, easy peasy. That they would hang their hat on that, is ridiculous.

SCOTUS is a bunch of useless law-itis infected lawyers. Will someone please get the hook and pull them off stage!?!?!

This decision from some asses with government jobs that won’t let cameras in their vaunted courtroom. Who channel everything through official channels so they don’t have to be bothered with even ONE actual American citizen in person.

They can kiss my ass.

    healthguyfsu in reply to Close The Fed. | July 14, 2019 at 12:16 am

    I didn’t down thumb you but this decision was not made by SCOTUS. It was a circuit appeals court…long way to go to get to SCOTUS.

    Milhouse in reply to Close The Fed. | July 14, 2019 at 3:38 pm

    No, you flaunt your ignorance again. @RealDonaldTrump was a private account, and while that was true Trump could block anyone he wanted from commenting on it. But shortly after his inauguration he converted it into an official government account. He hired government employees to post on it. He used it to conduct official business. It is no longer his private account, and it’s subject to all the legal requirements of any government account.

amatuerwrangler | July 13, 2019 at 11:10 am

This may be a bit off topic, but the 9th Circus has reversed a district court decision regarding Federal DOJ grants to sanctuary cities. LA had sued when DOJ pulled a grant to LAPD because the city obstructed ICE operations there. The district court said the DOJ couldn’t do that, but now the 9th has said, “Yes they can.”

I have not yet seen this reported on broadcast news. I saw it at Patterico with a link to “the hill”.

Don’t you just love how our justice system tries to have it both ways? Look at what they wrote:

“Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms.”

    No, from my non-lawyer perspective, that’s just “Hey! Don’t take this decision as something that it’s not! Only we can use penumbras and emanations and stuff…”

    puhiawa in reply to vg0va3. | July 13, 2019 at 4:12 pm

    That is the courts: We actually are Obama Judges and the real President. However we do this capriciously, without any law or precedent because The Orange Man is Bad. Or in the case of Judge Watson of Hawaii, Obama simply called him and told him how to rule.

    DaveGinOly in reply to vg0va3. | July 13, 2019 at 7:04 pm

    Courts may only decide on the questions before them. In effect, what the court is saying is, “We didn’t answer this question because it wasn’t asked.”

    When a court interjects opinion on subjects not posed, that’s dicta and is non-binding. (Although it does give a clue what direction that particular court would have gone if the question begging the answer had been before it, and given the same evidence and testimony.)

And yet it is being reported today Twitter shadow blocked Trump. Hmmmm. The courts have already ruled the internet is subject to Federal regulation.

    Voyager in reply to puhiawa. | July 13, 2019 at 4:22 pm

    That is going to be an interesting aspect of this. If Trump cannot block people from seeing his account because he is issuing it in his official governing capacity, should Twitter be able to block people from seeing it? If the government is barred from preventing people from seeing it’s official announcements, would they not also have an interest in preventing private entities from barring people from seeing said-same announcements?

    Allowing Twitter to hide protected speech seems to fly in the face of the stated intent of the ruling.

      rokiloki in reply to Voyager. | July 13, 2019 at 10:50 pm

      There will be the inevitable replies saying “Twitter is a private company so they can do what they want..”

      No, they can’t. Because they’ve elected to benefit from Section 230 of the Communications Decency Act, which applies to public forums, not private publishers.

      (That section gives public forums immunity from liability for what users may post.)

      If social media is going to censor certain viewpoints, then they can’t be immune to what they decide to leave. If they want to be immune from whatever people post, they must allow all to express lawful speech.

        Milhouse in reply to rokiloki. | July 14, 2019 at 3:45 pm

        That is completely wrong. That is the exact opposite of what section 230 does. Section 230 says that private interactive computer services, such as Legal Insurrection’s comment section, do not become publishers merely by moderating user-provided content. Nobody can sue Prof J for something one of us says here.

        Before section 230 was passed, the only way he could keep that immunity would be to do no moderation at all. The moment he deleted one comment he would become responsible for all the rest. Section 230 changed that. Without it such forums would become impossible. Every provider would have to shut them down.

If it’s a Constitutional right for people to be able to view and respond to Trump’s tweets, then how is Twitter able to limit the number of people who can view certain posts by Trump?

(Twitter is rolling out new rules that would “deprioritize” some tweets by government officials [i.e. Trump] and limit circulation and reach of those tweets.)

Twitter and other social media platforms can’t have it both ways – they can’t call themselves public forums to benefit from Section 230 of the Communications Decency Act and at the same time a private publisher so they can censor views they don’t like.

blocking someone prevents them not only from viewing your Twitter feed
log out of twitter can then view, no block in use then.