DOJ Contends You Don’t Have a Constitutional Right to Follow Donald Trump on Twitter

In a brief filed on October 13, 2017, the Department of Justice contends that users who have been blocked by President Trump on Twitter have no valid claim against the president. The brief was filed in response to a lawsuit brought by seven different Twitter users, as well as Columbia University’s Knight First Amendment Institute, which maintains that the president violated plaintiffs’ First Amendment rights by blocking them from accessing the @realDonaldTrump Twitter account.

The original lawsuit was filed in June 2017, and was noted for the cutting-edge issues it raised about First Amendment speech and social media. The suit argued that the president’s Twitter account functioned as a kind of “digital town hall,” where the president frequently communicates important news and policy changes to the public. Plaintiffs asserted that by blocking specific users who had criticized him, Trump was blocking these individuals from accessing an important platform for public information, and barring them from participation in the numerous public-discussion message chains which develop around his tweets.

The suit was filed in Federal District Court for the Southern District of New York, seeking a declaration that the president’s act of blocking certain users is unconstitutional, and requesting an injunction requiring Trump to unblock the accounts.

The thrust of plaintiffs’ First Amendment argument is that the president’s Twitter account has become a government-sponsored, designated public forum. First Amendment caselaw prohibits government actors from imposing viewpoint-based restrictions on speech in designated public forums (such as, only blocking access to users who disagree with you). Plaintiffs point to numerous facts which, they contend, demonstrate the official nature of the Twitter account. Trump often unveils important announcements for the first time on his Twitter account, before announcing through any formal channel. These announcements span from changes in national policies, to staff appointments, to new political stances. Several White House officials have said that the president’s tweets should be considered “official statements,” and courts have agreed: during the travel ban litigation, the Ninth Circuit treated the president’s tweets as official statements.

In arguing that social media platforms can be a public forum, plaintiffs rely heavily on a recent Supreme Court ruling, which invalidated a North Carolina law barring sex offenders from using Twitter or Facebook as violative of the First Amendment. The court found that social media had become “the modern public square,” and that blocking people from access to social media was far too sweeping a regulation.

The DOJ’s brief, a memo in support of its motion for summary judgement against the plaintiffs, is dismissive of plaintiffs’ arguments. Firstly, the DOJ argues that plaintiffs cannot establish state action, contending that the @realDonaldTrump account is a private account, which showcases only personal speech. DOJ points out that the account was opened before Trump was an elected official, and the status of his account does not change now that he is president. The brief contends:

            “the President does not operate his personal Twitter account by virtue of federal law, nor is blocking made possible because the President is clothed in Article II powers. His use of the @realDonaldTrump Twitter account is not a right conferred by the presidency. Twitter is a private platform, run by a private company. . .”

The brief further argues that even if his tweets are used to make official statements, this does not mean that “all actions related to that account are attributable to the state.” However, some critics have already pointed out that these arguments seem at odds with another position taken by the DOJ in its brief – that a court may not prevent the president from exercising his discretion in “the executive function” by preventing him from blocking Twitter users.

The DOJ further argues that plaintiffs cannot establish a violation of their First Amendment rights, contending that Trump’s decision to block certain users is within the scope of “expressive choices that public officials retain the right to make,” even when the decision to block was made because of disagreement with the user’s viewpoint.

Finally, the DOJ points out that Twitter users can still easily access the president’s tweets by logging out of their blocked account and accessing Twitter on the general public page, or by logging onto a separate Twitter account that hasn’t been blocked.

This case continues to stir intriguing public debate on the nature of First Amendment rights and social media, and the unique legal implications that arise when a president utilizes social media for policy announcements and (potentially) official statements.

For now, the case continues, as the president’s blocked Twitter followers are expected to file their response to the DOJ’s motion for summary judgement on November 3rd.