Court Says It's Unconstitutional For Trump To Block People On Twitter, But Doesn't Actually Order Him To Stop

Just last month, we noted that a court in Kentucky had ruled that the Governor of that state was free to block critics on social media accounts, saying that while people are free to speak, the First Amendment does not mean that the Governor has to listen. As we noted at the time, that ruling did not bode well for a more high profile case that was filed by the Knight First Amendment Center at Columbia University against President Donald Trump under similar circumstances. However, as you may have heard, a federal court in New York has now ruled that Trump's blocking is unconstitutional.

This is, not surprisingly, getting lots of attention, but many people commenting on it are not fully understanding the actual issues in the lawsuit (shocking, I know, that people doing legal analysis on the internet might sometimes not get it right...). As we've noted plenty of times in the past, the First Amendment does not apply to private platforms, and nothing in this ruling means that Twitter is a "public forum" (as some nuttier lawyers are trying to argue in other cases). Instead, the ruling is specific that it is just the commentary in response to Donald Trump that has become a public forum.

Though Twitter is a private (though publicly traded) company thatis not government-owned, the President and Scavino nonethelessexercise control over various aspects of the @realDonaldTrumpaccount: they control the content of the tweets that are sent fromthe account and they hold the ability to prevent, through blocking,other Twitter users, including the individual plaintiffs here,from accessing the @realDonaldTrump timeline (while logged intothe blocked account) and from participating in the interactivespace associated with the tweets sent by the @realDonaldTrumpaccount... Though Twitter also maintainscontrol over the @realDonaldTrump account (and all other Twitteraccounts), we nonetheless conclude that the extent to which thePresident and Scavino can, and do, exercise control over aspectsof the @realDonaldTrump account are sufficient to establish thegovernment-control element as to the content of the tweets sent bythe @realDonaldTrump account, the timeline compiling those tweets,and the interactive space associated with each of those tweets.While their control does not extend to the content of a retweet orreply when made -- "[n]o other Twitter user can alter the contentof any retweet or reply, either before or after it is posted" anda user "cannot prescreen tweets, replies, likes, or mentions thatreference their tweets or accounts," ... -- it nonethelessextends to controlling who has the power to retweet or reply inthe first instance.

Got that? It's an important nuance. Basically, the court is saying that because the President and his assistant "control" the space in which discussion occurs following his Tweets, that makes it a "designated public forum" and then, because it's the President and he is (duh!) a powerful government official, and government actors are not allowed to stifle protected speech, blocking accounts violates the First Amendment rights of those blocked. First, the court notes that that space in response to Trump's tweets is governmental in nature:

The President and Scavino's control over the @realDonaldTrumpaccount is also governmental. The record establishes (1) that the@realDonaldTrump account is presented as being "registered toDonald J. Trump, '45th President of the United States of America,Washington, D.C.,'" ... (2) "that the President's tweetsfrom @realDonaldTrump . . . are official records that must bepreserved under the Presidential Records Act," ... see 44U.S.C. 2202 (directing the retention of "Presidential records";id. 2201(2) (defining "Presidential records" as those created"in the course of conducting activities which relate to or have aneffect upon the carrying out of the constitutional, statutory, orother official or ceremonial duties of the President"); and (3)that the @realDonaldTrump account has been used in the course ofthe appointment of officers (including cabinet secretaries), theremoval of officers, and the conduct of foreign policy, ...-- all of which are squarely executive functions.... That is, the President presents the@realDonaldTrump account as being a presidential account asopposed to a personal account and, more importantly, uses theaccount to take actions that can be taken only by the President asPresident. Accordingly, we conclude that the control that thePresident and Scavino exercise over the account and certain of itsfeatures is governmental in nature.

And thus, blocking is unconstitutional under the First Amendment because blocking people based on what they've said is a content-based restriction on speech:

Here, the individual plaintiffs were indisputably blocked asa result of viewpoint discrimination. The record establishes that"[s]hortly after the Individual Plaintiffs posted the tweets . . .in which they criticized the President or his policies, thePresident blocked each of the Individual Plaintiffs," ...and defendants do "not contest Plaintiffs' allegation that theIndividual Plaintiffs were blocked from the President's Twitteraccount because the Individual Plaintiffs posted tweets thatcriticized the President or his policies." ... Thecontinued exclusion of the individual plaintiffs based onviewpoint is, therefore, impermissible under the First Amendment.

The court further finds that using Twitter's mute feature, rather than block, would be Constitutional, because that doesn't implicate the others' right to speak in that public forum (though it does stop Trump from seeing those tweets).

Given these differing consequences of muting and blocking, wefind unpersuasive defendants' contention that a public official'smuting and blocking are equivalent, and equally constitutional,means of choosing not to engage with his constituents. Implicitin this argument is the assumption that a reply to a tweet isdirected only at the user who sent the tweet being replied to.Were that so, defendants would be correct in that there is nodifference between the inability to send a direct reply (as withblocking) and the inability to have that direct reply heard by thesender of the initial tweet being responded to (as with muting).But this assumption is not supported in the record: a reply isvisible to others, ... and may itself be replied to byother users.... The audience for a reply extendsmore broadly than the sender of the tweet being replied to, andblocking restricts the ability of a blocked user to speak to thataudience. While the right to speak and the right to be heard maybe functionally identical if the speech is directed at only onelistener, they are not when there is more than one.

In sum, we conclude that the blocking of the individualplaintiffs as a result of the political views they have expressedis impermissible under the First Amendment. While we mustrecognize, and are sensitive to, the President's personal FirstAmendment rights, he cannot exercise those rights in a way thatinfringes the corresponding First Amendment rights of those whohave criticized him.

There is one odd bit that is not mentioned in most of the commentary on this ruling. And it's this: the court does not actually order Trump to stop blocking people. It just says that it's unconstitutional. Given the choice between giving the Knight Center injunctive relief (i.e., forcing the defendant to comply) and merely declaratory relief (i.e., telling the plaintiff they are correct), it chose the latter. It notes that there is some question of whether or not the courts can impose injunctive relief on a sitting President, and decides to side-step the question altogether.

While we find entirely unpersuasive theGovernment's parade of horribles regarding the judicialinterference in executive affairs presented by an injunctiondirecting the President to comply with constitutionalrestrictions, we nonetheless recognize that "[a]s a matter ofcomity, courts should normally direct legal process to a lowerExecutive official even though the effect of the process is torestrain or compel the President."

It does note that it could award injunctive relief against the guy who helps manage the Twitter account, Dan Scavino, but chooses not to. In effect, the court says that by granting declaratory relief and merely saying that this activity violates the First Amendment, that should be enough to convince Scavino and Trump to stop blocking:

Accordingly, though we conclude that injunctive relief may beawarded in this case -- at minimum, against Scavino -- we declineto do so at this time because declaratory relief is likely toachieve the same purpose. The Supreme Court has directed that weshould "assume it is substantially likely that the President andother executive . . . officials would abide by an authoritativeinterpretation of [a] . . . constitutional provision,"... ("Were this courtto issue the requested declaration, we must assume that it issubstantially likely that [government officials] . . . would abideby our authoritative determination."), and there is simply noreason to depart from this assumption at this time.

Given this particular administration, that seems like a mighty big assumption. The White House has, at the very least, already suggested it will appeal this ruling, so the issue of declaratory v. injunctive relief may not really be all that important or get much attention, but it does seem noteworthy that the court seems to say it doesn't need to order the President to do anything since it expects him to respect its ruling. Some people might fight that assumption somewhat laughable.

Meanwhile, this President, who has at multiple times claimed to be a huge First Amendment supporter, has lost a First Amendment case for stomping on the rights of some of the citizens of the country whose government he runs.