Last year, a federal judge in Manhattan ruled that Donald Trump (a man whose unhinged tweeting has ranged from boosting neo-Nazi propaganda and slamming critics to worrying the military about nuclear war) could not block critics on Twitter, finding his feed is a public forum and that blocking his haters amounted to a violation of the First Amendment. Well, he’s still fighting that ruling in the appeals process, with the Justice Department defending the blocks before a three-judge panel in Manhattan federal court on Tuesday.
It doesn’t appear to be going so well for the president’s itchy blocking finger! According to reports in Bloomberg, the Washington Post, and CNN, the three judges in question seemed rather skeptical of the DOJ’s claim that what goes down on @realDonaldTrump is between the president and his Twitter enemies, rather than between the federal government and the U.S. populace. Instead, they seemed amenable to the plaintiffs, users who at one time or another were blocked by Trump, and are being represented in the suit by the Knight First Amendment Institute.
According to the Post, justices rolled off a number of recent Trump tweets including ones announcing new appointees, observations on North Korea, and ceremonial greetings from the White House. Judge Barrington D. Parker Jr. of the U.S. Court of Appeals for the 2nd Circuit asked, “Are you seriously urging us to believe the president isn’t acting in his official capacity when he’s tweeting?”
Parker added that when Trump blocks someone on Twitter, he “subtracts from that discussion points of view the president doesn’t like. Why isn’t that a quintessential First Amendment violation?”
The Post wrote:
Lawyers for the blocked individuals say the case is not about Twitter, a private company, but about how Trump uses Twitter as president. He routinely takes to Twitter to announce government appointments and dismissals and his administration’s policies. Then-press secretary Sean Spicer told reporters in June 2017 that Trump’s tweets should be considered “official statements by the president.” The National Archives has said Trump’s tweets must be preserved as presidential records.
Per CNN, the attorneys for the DOJ conceded that the president uses his Twitter feed in an official capacity—itself a change from last year, when they insisted he was using it for personal reasons. But they still contend that when Trump mashes that block button, he is “doing so in his personal capacity.” Just because the president got elected does not make his Twtter account government property, they added. (As Slate noted, a DOJ attorney confirmed that it is in fact Trump himself who is blocking people, not his cronies.)
Judge Peter W. Hall responded that if that was the case, “It is curious to me that the Justice Department is here representing him... Your very presence here represents that [Twitter] is a public forum.”
According to the Post, Judge Christopher F. Droney suggested that while Twitter is a private company, Trump’s use of it is akin to the government renting a private space to host a town hall meeting—a scenario in which a government official could not ban a specific attendee just because they disliked what their points of view.
“How is that different from the blocking here?” Droney asked.
Attorneys for the plaintiffs argued at the Tuesday hearing that if government officials are allowed to block critics on social media, the ramifications could be huge.
“If the court were to hold that this kind of blocking is beyond the reach of the First Amendment, that would have implications far beyond this particular context,” Knight First Amendment Institute attorney Jameel Jaffer said, per Bloomberg. “It would seemingly apply to the @POTUS and @WhiteHouse accounts as well. It would probably apply to every government website that has a space for public comment. I think you would be opening the door to manipulation and distortion of those spaces.”
The judge in original case urged the Trump administration to reach a settlement, alluding to the fact that any court ruling would likely be precedent-setting. However, as the Post noted, the U.S. Court of Appeals for the 4th Circuit in Richmond, Virginia unanimously ruled in January that a local official could not block critics on a page she used in an official capacity.
In other words, this doesn’t seem to be going well for our burnt umber Tweeter-in-Chief. Sad!