BY HANK REICHMAN
A few days ago I posted to this blog an item about “The Case of Dr. Eugene Gu and Vanderbilt University Medical Center” in which I noted that Dr. Gu, a target of online harassment, is part of a group of Twitter users who, with the support of the Knight First Amendment Institute at Columbia University, filed suit against President Donald Trump and members of his staff. The group, all of whom have been blocked by Trump on Twitter, alleges that preventing citizens from accessing the president’s account, a “public forum,” violates the First Amendment. Oral argument in the case is scheduled for March, but here is the text of the introduction to the plaintiffs’ motion for summary judgment, submitted in November, which summarizes the argument of the case:
The President’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important forum for speech by, to, and about the President. The account is akin to a digital town hall, with the President speaking from the podium at the front of the room and assembled citizens responding to him and engaging with one another about the President’s statements. In an effort to suppress dissent, the President and his aides are ejecting from this forum—“blocking”—the Individual Plaintiffs and other Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this lawsuit seeks to end it.
Plaintiffs are entitled to summary judgment. There is no genuine issue of material fact. To the contrary, the parties’ joint stipulation filed on September 28, 2017 includes the undisputed facts necessary to establish the Court’s jurisdiction as well as the appropriateness of declaratory and injunctive relief against President Trump and his aides.
The First Amendment applies here because Defendants use @realDonaldTrump for official purposes. As the joint stipulation makes clear, White House staff members assist the President in drafting and posting tweets to the account. The President and his aides use the account to make official announcements, defend the President’s official decisions and actions, report on the President’s meetings with foreign leaders, and promote the administration’s positions on health care, immigration, foreign affairs, and other matters. The President’s aides have stated that tweets from @realDonaldTrump are “official statements,” and they have cited the tweets in response to official congressional inquiries. The tweets have been treated as official statements by national public officials, public agencies, world leaders, and federal courts. The record thus establishes that Defendants use @realDonaldTrump as a “tool of governance.” See Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL 3158389 (E.D. Va. July 25, 2017) (holding that county official used her Facebook page as a tool of governance and that accordingly the account was subject to the First Amendment).
Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account violates the First Amendment for several reasons.
First, the blocking violates the prohibition against viewpoint-based exclusion of speakers from a designated public forum. The government creates a designated public forum when it opens a space for speech by the public at large without restriction as to subject matter or speaker. This is what Defendants have done here. The @realDonaldTrump account is a digital space in which anyone with a Twitter account can respond to and debate the President’s statements (“tweets”) in “comment threads” associated with those tweets. Given the nature of the forum, Defendants’ concession that they have excluded the Individual Plaintiffs based on viewpoint amounts to a concession that Defendants have violated the Individual Plaintiffs’ right to speak as well as the Knight Institute’s right to hear.
Defendants’ argument that the @realDonaldTrump account is “government speech” mistakes the part for the whole: While the President’s tweets are government speech, the millions of comments on his tweets by ordinary citizens are not, and no one would mistake them for it. Again, town halls and open city council meetings supply useful analogies. The mere fact that a forum includes government speech does not convert it to something other than a public forum.
Second, and independent of the public forum analysis, Defendants’ blocking of the Individual Plaintiffs violates the First Amendment because it restricts their access to generally available government information in retaliation for their criticism of the President. Through his Twitter account, the President makes information about his presidency generally available to anyone who follows him on Twitter. The First Amendment forecloses Defendants from burdening the Individual Plaintiffs’ access to this otherwise generally available information solely because the Individual Plaintiffs have criticized the President or his policies.
Third, and independent of the two claims described above, Defendants’ conduct violates the Individual Plaintiffs’ First Amendment right to petition the government for redress of grievances. The @realDonaldTrump account is, among other things, a channel through which ordinary citizens can complain about government policy directly to the President and his closest aides. See Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (noting importance of social media platforms, and Twitter in particular, as channels through which citizens exercise rights protected by Petition Clause). Plaintiffs do not contend that Defendants are required to make this channel available to the public at large, but having done so, Defendants cannot close it to the Individual Plaintiffs solely because they have criticized the President or his policies.
Defendants’ contention that the Court lacks power to remedy the unconstitutional conduct complained of here is meritless. The President is not above the law, and the notion that the separation of powers requires this Court to turn a blind eye to the President’s violations of First Amendment rights turns the separation of powers on its head. Moreover, even if there were merit to Defendants’ argument that the Court cannot enjoin the President—and there is not—the Court would still have the authority to grant declaratory relief against the President as well as injunctive and declaratory relief against the President’s aides. Those aides include Dan Scavino, White House Social Media Director and Assistant to the President, who by Defendants’ admission is actively involved in administering the @realDonaldTrump account and has the access necessary to unblock the Individual Plaintiffs.
Plaintiffs respectfully request that the Court deny Defendants’ motion and enter summary judgment in Plaintiffs’ favor.
The full brief may be found at https://knightcolumbia.org/sites/default/files/content/Knight_v_Trump_Opposition_MSJ_brief.pdf
This legal argument is highly dubious. I think it’s stupid and wrong for Trump to block people, but this is his personal twitter account and the fact that he is president doesn’t remove his right to do so. People who are blocked can still read his tweets. If Trump as a public employee cannot block people, does that mean professors at public universities are also public employees who cannot block those who harass them on twitter?
It is up to the courts to determine if this argument is legally dubious or not. But some facts are indisputable. As the brief demonstrates (in a lengthy “how Twitter works” section that non-Twitterers may find helpful), those blocked by Trump in fact can NOT read his tweets — that is, unless they are published elsewhere or forwarded by others. A small distinction, perhaps, but not without meaning. More important, they cannot reply, which is the main point, even if you (and I) think replying is a total waste of time. More important, nowhere does this brief argue, as this comment suggests, that Trump shouldn’t be able to block because he is a public employee. That would be a truly stupid position, but it isn’t the position of the brief. Instead the plaintiffs argue at considerable length that the president has, under a series of criteria, established his Twitter account as a “public forum,” differing from other Twitter accounts in a number of critical respects. As a “public forum,” the argument goes, access cannot be restricted. That argument may or may not fly in court, and may or may not be persuasive to you or others, but it is quite a different argument than one suggesting that public employees have no right to block anyone from their Twitter accounts, “personal” or not. By the way, in the relevant First Amendment law the term “personal” is meaningless. The account is either a public forum, a limited public forum, or not a public forum, whether its owner deems it “personal” or not. One reason the suit claims it is public is because the defendants (not only Trump, but Hope Hicks, Sarah Huckabee Sanders, and other staff) stipulated that they often write and post the tweets. Hardly “personal.” In short, nothing in this suit poses a danger to professors or other public employees who may wish/need to block people from accessing their Twitter feeds.