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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