On May 23, 2018, a federal court in New York ruled that the President violated the First Amendment of the Constitution when he blocked users on Twitter. The case arrived before the court as a result of plaintiffs claiming that their First Amendment rights were violated when President Trump blocked them on Twitter in response to their criticism of his policies.
In reaching the court’s determination that the plaintiffs’ First Amendment rights were violated, the court had to determine if the plaintiffs’ speech was protected, whether the speech occurred in a public forum, and whether the President engaged in viewpoint discrimination when blocking the plaintiffs on Twitter. Because the plaintiffs sought to engage in political speech on matters of public concern, the court quickly determined that their speech was protected speech. Next, the court discussed the different aspects of Twitter, finally determining that the “interactive space” (defined as the ability of a Twitter user to reply, retweet, engage, and “like” any particular tweet) associated with each of the President’s tweets was a public forum. The President argued that because his Twitter account was established prior to his presidency, the account was private and therefore not a government-run account nor a public forum. The court disagreed, relying on the fact that the President often uses his Twitter account to announce policies, mention meetings with foreign officials, promote his legislative agenda, and publish other official communications of the President. Because the “interactive space” was generally available to the public and the account has been advertised as a way to communicate directly with the American people, the “interactive space” was deemed a public forum. Finally, it was indisputable that the plaintiffs were blocked as a result of their speech, resulting in viewpoint discrimination by the President. Ultimately, the President was prohibited from blocking individuals on his official Twitter account.
While this case occurred in New York and primarily concerns the actions of the President, the implications are far broader. The court is clear that a public official may not block an individual from a social media account that is operated in the public official’s official capacity based on the individual’s protected speech. There is nothing that specifically prevents public officials from maintaining a social media presence, but by doing so, the public official will likely create a public forum and therefore have limited ability to block or delete comments from individuals that may be harassing or offensive. Public officials should carefully consider the establishment of an official social media presence when there are other outlets available to communicate with constituents. Additionally, public officials should be equally careful to ensure that they do not use their personal social media accounts for official communications, as such may convert the account into a public forum, thus subjecting the public official to the above restrictions.
