Second Circuit Upholds Lower Court: Public Official Cannot Block Followers From Twitter Account Through Which He Issues Communications About Official Duties

New from the U.S. Second Circuit, affirming a lower court: President Trump cannot block followers on Twitter because he disagrees with their speech.

The salient issues in this case arise from the decision of the President to use 7 a relatively new type of social media platform to conduct official business and to 8 interact with the public. We do not consider or decide whether an elected official 9 violates the Constitution by excluding persons from a wholly private social 10 media account. Nor do we consider or decide whether private social media 11 companies are bound by the First Amendment when policing their platforms.  12 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. (Footnotes omitted).

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The President and multiple members of his administration have described 2 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.” … Moreover, the Account is one of the White House’s main vehicles for conducting official business. The President operates the Account with the assistance of defendant Daniel Scavino, the White House Director of Social Media and Assistant to the President. The President and his aides have characterized tweets from the Account as official statements of the President….Finally, we note that the National Archives, the agency of government 10 responsible for maintaining the government’s records, has concluded that the President’s tweets are official records. The Presidential Records Act of 1978 established public ownership of the President’s official records. 44 U.S.C. § 2202. Under that Act, “Presidential records” include documentary materials created by the President “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory or other official or ceremonial duties of the President.” Id. § 2201. 

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No one disputes that the First Amendment restricts government regulation of private speech but does not regulate purely private speech.4 If, in blocking, the President were acting in a governmental capacity, then he may not discriminate based on viewpoint among the private speech occurring in the Account’s interactive space. As noted, the  government argues first that the Account is the President’s private property because he opened it in 2009 as a personal account and he will retain personal control over the Account after his presidency. However, the fact that government control over property is temporary, or that the government does not “own” the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment  purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52  (1975) (holding privately‐owned theater leased to and operated by city was public forum).5 5 Temporary control by the government can still be control for First Amendment purposes. 

Knight First Amendment Institute v. Trump (Docket no. 18-1691, decided July 9, 2019).