On July 9, 2019, the U.S. Court of Appeals for the Second Circuit ruled in Knight First Amendment Institute v. Trump that President Trump violated the First Amendment by blocking Twitter users that criticized him. The Second Circuit, therefore, affirmed the ruling of the U.S. District Court for the Southern District of New York that we previously reported on HERE.
In reaching its ruling, the court found that the President’s use of his account was governmental because of the extensive evidence of pervasive governmental involvement with, and control over, the account. Also, the President’s use of Twitter had created a public forum because of expressive nature of Twitter (i.e., the ability of users to reply, retweet, engage with, and “like” any particular tweet). Consequently, the President engaged in viewpoint discrimination, which the First Amendment prohibits in a public forum, by blocking users who posted comments critical of him in response to his tweets. The court further found that the purported workarounds for the blocked users to view the President’s tweets (such as creating a new account or viewing the page without logging in) demonstrated the burdens of being blocked on Twitter. Finally, the court rejected the argument that the President’s use of Twitter was governmental speech because of the interactive nature of Twitter. Thus, the President’s blocking of Twitter users critical of him violated the First Amendment.
Although this case occurred in New York and concerns the President and his staff’s use of Twitter, this ruling could impact public official’s use of social media accounts more broadly. A public official who is using a social media account—even a private one—in an official capacity may not be able to block a user from viewing and replying to posts. In this case, the court ruled that the First Amendment applied because the President and his subordinates hold out and use a social media account open to the public as an official account for conducting official business. But the court emphasized that such a determination requires a fact-specific inquiry that is 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.
Because the President may still appeal this ruling, the law in this area may be in flux. Nevertheless, public officials should recognize that their use of social media for official purposes will create a public forum, so they cannot block users or delete comments, even if they are harassing or offensive. For this reason, public officials should carefully consider whether they should have an official social media presence when there are other outlets available to communicate with their constituents. Public officials should also be careful to never use a personal social media account for official communications. Such use may convert the account into a public forum and subject the public official to the First Amendment’s constraints on a public forum.