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Monday, April 1, 2019

Court of Appeals Hears Argument on Trump's Twitter Appeal

As we have reported previously on Municipal Minute, President Trump was sued for blocking individuals from his @realDonaldTrump Twitter account. The district court ruled that the President's actions in blocking individuals from his Twitter account violated their First Amendment rights because (1) the President's Twitter account was a "public forum" subject to the First Amendment and (2) the President's blocking of these individuals was unlawful "viewpoint discrimination." 

The President appealed to the U.S. Court of Appeals for the Second Circuit, which heard oral argument from both sides of the lawsuit last week.  You can listen to the oral argument on the Court of Appeals website here - the case is referenced as Case No. 18-1691.

President Trump was represented by the Department of Justice, which argued that the district court erred in ruling against the President. First, the DOJ argued that the President's "blocking" of persons from his Twitter account was not "state action" because that action is personal and not governmental because he had the right to block people from this account prior to becoming President and will have that right after he is no longer President. The DOJ also argued that the @realDonaldTrump Twitter account is not a public forum, so the First Amendment does not apply to his activities related to that account.

The 3 Judge panel spent a lot of time questioning the DOJ on these two issues. They asked how this could be a purely personal activity of a private individual if the DOJ was representing him in the lawsuit. They also questioned how the Twitter account was not a public forum where the President's activities on this account are "regularly and persistently" related to the government and the President's duties and responsibilities. The Judges also asked about the rationale for the blocking, specifically questioning whether the people were blocked from the Twitter account because of the content of their speech (i.e., "viewpoint discrimination") that would violate the First Amendment.

The Knight First Amendment Institute was asked whether all government official's social media activities are subject to the First Amendment, and responded that it did not believe that every personal social media account of a government official is a "public forum." Instead, the Institute's counsel acknowledged that there must be some ties between the government official's activities and the government, which might include whether government staff has access to the account, the content of the official's posts on the account, and similar activities. In this particular case, the Institute argued that the @realDonaldTrump Twitter account was clearly used for government purposes, and that the President had blocked the individuals from the account because they criticized the President in violation of their First Amendment rights.

This case is interesting for many reasons, but particularly because the Court of Appeals ruling may provide additional guidance to municipal and other government officials on how they should conduct their own social media activities, even on what they might have assumed are their personal pages or accounts. You may recall that the Court of Appeals for the Fourth Circuit considered a similar challenge to a Loudoun County Commissioner's blocking of individuals from her personal Facebook page and found that activity to violate the First Amendment because her Facebook page was used for governmental purposes. We wrote about that case earlier this year here.

We will keep you posted on this case and summarize the decision once it has been issued.


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