Advertising Law Blog

On July 9, 2019, the Second Circuit Court of Appeals unanimously affirmed a U.S. District Court ruling that President Donald Trump engaged in unconstitutional viewpoint discrimination by blocking Twitter users from his @realDonaldTrump account.  The Second Circuit relied on the First Amendment, which prevents government officials from excluding people from expressing their beliefs when conducting official business.  Naomi Reice Buchwald, a Senior United States District Judge of the United States District Court for the Southern District of New York, wrote in her May 2018 decision that

this case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States.  The answer to both questions is no.  No government official, including the President, is above the law, and all government officials are presumed to follow the law as has been declared.

The First Amendment to the U.S. Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

In the case at hand, several Twitters users were blocked by President Trump because of their critical messages in response to certain of the President’s tweets. The District Court ruled in favor of the plaintiffs, concluding that President Trump violated the First Amendment by blocking the individual plaintiffs from his Twitter account because of their tweets against his policies and positions. The Second Circuit analyzed the President’s use of the Twitter account and his supervision of the interactive features of Twitter and determined that the @realDonaldTrump account is presented and used “for all manner of official purposes” and not as a personal account. It was these interactive features – replying to, retweeting or liking – that meant that blocking the plaintiffs from the President’s account prevented them from participating in a public forum, “something the First Amendment prohibits.”

The Second Circuit relied on the right to freedom of speech guaranteed by the First Amendment to the U.S. Constitution.  The legal issue to be resolved here was whether the President could block Twitter users because of their contrary opinions when he is using his social media as an official means of communication with the public. The Second Circuit also disagreed with a second argument from the Department of Justice’s lawyers, specifically, that if the Twitter account is controlled by the government, it is government speech that is not regulated by the First Amendment.  By finding that its interactive features mean Twitter is a public forum, blocking users’ access would be impermissible expansion of the governmental speech doctrine, citing the Supreme Court’s caution that the government should not be allowed to use the doctrine to silence or muffle the expression of disfavored viewpoints.

The Second Circuit affirmed the judgment of the District Court and ruled in favor of the plaintiffs holding 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.”

Takeaway:  As part of the Bill of Rights, the First Amendment became effective December 1791.  This case is a great example of how our U.S. courts apply age-old principles to the modern-day experience.  Turning an often-used phrase on its ear, one could say that this case indicates that what’s new is old again.