In May and June of 2017, then President, Donald J. Trump blocked Individual Plaintiffs from his Twitter Account. The government concedes that each of them was blocked after posting replies in which they criticized the President or his policies and that they were blocked as a result of their criticism. The government also concedes that because they were blocked they are unable to view the President's tweets, to directly reply to these tweets, or to use the @realDonaldTrump webpage to view the comment threads associated with the President's tweets. See Knight First Amendment Institute v. Trump, 928 F. 3d 226 (2nd Cir. 2019).
In July 2017, the Individual Plaintiffs and the Knight Institute sued Donald Trump, Daniel Scavino, and two other White House staff members alleging that blocking them from the Account violated the First Amendment. The parties cross-moved for summary judgment.
The President and multiple members of his administration have described 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." In June 2017, then-White House Press Secretary Sean Spicer stated at a press conference that President Trump's tweets should be considered "official statements by the President of the United States." In June 2017, the White House responded to a request for official White House records from the House Permanent Select Committee on Intelligence by referring the Committee to a statement made by the President on Twitter.
After concluding that the defendants had created a public forum in the interactive space of the Account, the district court concluded that, by blocking the Individual Plaintiffs because of their expressed political views, the government had engaged in viewpoint discrimination. Finally, the court held that the blocking of the Individual Plaintiffs violated the Knight Institute's right to read the replies of the Individual Plaintiffs which they cannot post because they are blocked.
On appeal, the President's primary argument in his brief is that when he blocked the Individual Plaintiffs, he was exercising control over a private, personal account.
Affirmed—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.
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Once it is established that the President is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment. Manhattan Community Access Corp. et al. v. Halleck et al., 587 U.S. ___, 139 S.Ct. 1921, 204 L.Ed.2d 405 (2019) ("When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint ...."); see also Pleasant Grove, 555 U.S. at 469-70, 129 S.Ct. 1125 (viewpoint discrimination prohibited in traditional, designated, and limited public forums); Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 806, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985) (viewpoint discrimination prohibited in nonpublic forums).
As a general matter, social media is entitled to the same First Amendment protections as other forms of media. Packingham v. North Carolina, ___ U.S. ___, 137 S. Ct. 1730, 1735-36, 198 L.Ed.2d 273 (2017) (holding a state statute preventing registered sex offenders from accessing social media sites invalid and describing social media use as "protected First Amendment activity"). "[W]hatever the challenges of applying the Constitution to ever-advancing technology, 'the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears." Brown v. Entm't Merchants Ass'n, 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952)). A public forum, as the Supreme Court has also made clear, need not be "spatial or geographic" and "the same principles are applicable" to a metaphysical forum. Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510.
To determine whether a public forum has been created, courts look "to the policy and practice of the government" as well as "the nature of the property and its compatibility with expressive activity to discern the government's intent." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. Opening an instrumentality of communication "for indiscriminate use by the general public" creates a public forum. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum.
If the Account is a forum— public or otherwise—viewpoint discrimination is not permitted by the government. Int'l Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992); see also Pleasant Grove, 555 U.S. at 469-70, 129 S.Ct. 1125 (viewpoint discrimination prohibited in traditional, designated, and limited public forums); Cornelius, 473 U.S. at 806, 105 S.Ct. 3439 (viewpoint discrimination prohibited in nonpublic forums). A blocked account is prevented from viewing any of the President's tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is therefore a symbolic message with expressive content. See, e.g., W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 632-33, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943) (discussing symbols as speech). Significantly, the parties agree that all of this expressive conduct is communicated to the thousands of users who interact with the Account. By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits.
The government does not challenge the District Court's conclusion that the speech in which Individual Plaintiffs seek to engage is protected speech; instead, it argues that blocking did not ban or burden anyone's speech. See Knight First Amendment, 302 F. Supp. 3d at 565. Specifically, the government contends that the Individual Plaintiffs were not prevented from speaking because "the only material impact that blocking has on the individual plaintiffs' ability to express themselves on Twitter is that it prevents them from speaking directly to Donald Trump by replying to his tweets on the @realDonaldTrump web page." Appellants Br. at 35.
That assertion is not wellgrounded in the facts presented to us. The government is correct that the Individual Plaintiffs have no right to require the President to listen to their speech. See Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283, 104 S.Ct. 1058, 79 L.Ed.2d 299 (1984) (a plaintiff has "no constitutional right to force the government to listen to their views"). However, the speech restrictions at issue burden the Individual Plaintiffs' ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.
The government's reply is that the Individual Plaintiffs are not censored because they can engage in various "workarounds" such as creating new accounts, logging out to view the President's tweets, and using Twitter's search functions to find tweets about the President posted by other users with which they can engage.
Tellingly, the government concedes that these "workarounds" burden the Individual Plaintiffs' speech. See App'x 35-36, 66. And burdens to speech as well as outright bans run afoul of the First Amendment. See Sorrell v. IMS Health Inc., 564 U.S. 552, 566, 131 S.Ct. 2653, 180 L.Ed.2d 544 (2011) (stating that government "may no more silence unwanted speech by burdening its utterance than by censoring its content"); United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) ("The distinction between laws burdening and laws banning speech is but a matter of degree. The Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans."). When the government has discriminated against a speaker based on the speaker's viewpoint, the ability to engage in other speech does not cure that constitutional shortcoming. Christian Legal Soc. Chapter of the Univ. of California, Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 690, 130 S.Ct. 2971, 177 L.Ed.2d 838 (2010). Similarly, the fact that the Individual Plaintiffs retain some ability to "work around" the blocking does not cure the constitutional violation. Neither does the fact that the Individual Plaintiffs can post messages elsewhere on Twitter. Accordingly, we hold that the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech.
Finally, the government argues that to the extent the Account is controlled by the government, it is government speech. Under the government speech doctrine, "[t]he Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak" about governmental endeavors. Matal v. Tam, ___ U.S. ___, 137 S. Ct. 1744, 1757, 198 L.Ed.2d 366 (2017). For example, when the government wishes to promote a war effort, it is not required by the First Amendment to also distribute messages discouraging that effort. Id. at 1758; see also Pleasant Grove, 555 U.S. at 467, 129 S.Ct. 1125 ("The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech.").
It is clear that if President Trump were engaging in government speech when he blocked the Individual Plaintiffs, he would not have been violating the First Amendment. Everyone concedes that the President's initial tweets (meaning those that he produces himself) are government speech. But this case does not turn on the President's initial tweets; it turns on his supervision of the interactive features of the Account. The government has conceded that the Account "is generally accessible to the public at large without regard to political affiliation or any other limiting criteria," and the President has not attempted to limit the Account's interactive feature to his own speech. App'x at 55.
Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President's tweets, the message is identified as coming from that user, not from the President. [. . .]
THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze and discuss issues surrounding cyber law. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Fifth Circuit Court of Appeals. Volume 2 of the casebook covers the Sixth through the Eleventh Circuit Court of Appeals.