Back in July, when this blog was just getting started, I posted twice (here and here) about a lawsuit brought by the Knight First Amendment Institute at Columbia University against President Trump (and a few of his advisers) which alleged they violated the First Amendment because Twitter users were blocked from the @realDonaldTrump account. I said then that I thought Knight had a very good case, but I also posted Eugene Volokh’s opinion to the contrary: the major disagreement being about whether Trump’s twitter account is a public forum. In other words, is it Trump-the-president (my view) or Trump-the-man (Volokh)? Turns out, at least in the opinion of the judge in the case, I was right.
The court’s opinion was handed down on last week (May 23) and is, despite the 75-page length, well worth the read, and not just because the judge agrees with me. United States District Judge Naomi Reice Buchwald carefully and clearly lays out the entire case, from the facts to standing, to the First Amendment issues, and finally to the remedy. Even if you disagree with the ultimate holding (and there are valid reasons for doing so) you could learn a lot from the opinion. I’ll summarize it in what follows.
The judge does not hide the lede. The first paragraph reads:
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 doubt where Judge Buchwald is headed. But she constructs her opinion in a way that is both very logical and very understandable, even (I think) for non-lawyers. First, she describes what Twitter is and how it works (and not everybody knows this, even if they have heard of Twiter). (Pages 3-9). She then describes how the @realDonaldTrump fits into the Twitter framework as an account, how it operates, and how the plaintiffs, individual Twitter users, were blocked. (Pages 9-13). An important point is that all the facts of the case were stipulated to (agreed upon) by the plaintiffs and the government. This means that there is no dispute about the “what happened”; there is only a dispute about “what does that mean legally”?
Next, the court goes into an extended discussion of standing (pages 16-37): whether the plaintiffs (individuals and Knight Institue) can even bring the suit and whether the court has jurisdiction to hear it. I posted about justiciability (which includes the notion of standing) last November, but if you want a clear and detailed analysis of standing. I recommend these 21 pages. Having held, contrary to the government’s position, that all of the plaintiffs have standing, Judge Buchwald goes to the heart of the case, a 32 page (pages 37-69) discussion about the First Amendment and whether Trump’s blocking of Twitter users violates it.
Central to the court’s analysis is the question of whether the interactive space created by Trump in the @realDonaldTrump account is a “public forum.” This is key because public forums have the most First Amendment protections. As LII explains it:
First Amendment protections of speakers’ rights to speech and assembly vary based on the speakers’ chosen forum. The Supreme Court breaks down forums into three types: traditional public forums, designated forums, and nonpublic forums. See Perry Educ. Ass’n v. Perry Educators’ Ass’n, 460 U.S. 37 (1983). Finally, some public property is not a forum at all.
Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Speakers’ in these areas enjoy the strongest First Amendment protections. In traditional public forums, the government may not discriminate against speakers based on their views. This is called “viewpoint discrimination.” The government may, however, subject speech to reasonable, content-neutral restrictions on its time, place, and manner. When considering government restrictions of speech in traditional public forums, courts use “strict scrutiny.” Under strict scrutiny, restrictions are allowed only if they serve a compelling state interest and are narrowly tailored to meet the needs of that interest.
Sometimes, the government opens public property for public expression even though the public property is not a traditional public forum. These are designated public forums. After opening a designated public forum, the government is not obligated to keep it open. However, so long as the government does keep the forum open, speech in the forum receives the same First Amendment protections as speech in traditional public forums. Examples of designated public forums include municipal theatres and meeting rooms at state universities.
The government may limit access to a designated public forum to certain classes or types of speech. In these “limited forums,” although the government may discriminate against classes of speakers or types of speech, it may not exercise viewpoint discrimination.
(Emphasis added). The last phrase is the core of the case, because Judge Buchwald, having determined that @realDonaldTrump is a designated public space, set up to announce presidential policy, positions, and news, held that the President or his staff blocking those who disagreed with those positions, policy, and news was, in fact, viewpoint discrimination, and thus violates the First Amendment:
Here, the individual plaintiffs were indisputably blocked as
a result of viewpoint discrimination. The record establishes that
“[s]hortly after the Individual Plaintiffs posted the tweets . . .
in which they criticized the President or his policies, the
President blocked each of the Individual Plaintiffs,” Stip. ¶ 53,
and defendants do “not contest Plaintiffs’ allegation that the
Individual Plaintiffs were blocked from the President’s Twitter
account because the Individual Plaintiffs posted tweets that
criticized the President or his policies.” Stip. at 1. The
continued exclusion of the individual plaintiffs based on
viewpoint is, therefore, impermissible under the First Amendment.
Page 63.
Well, what is the remedy, as one of my commenters asked? The plaintiffs asked for both injunctive (Trump must do something) and declaratory (the court holds that he has violated the First Amendment) relief. The court rejected the government’s argument that the court lacks authority to enjoin the president (“Defendants suggest that we categorically lack authority to enjoin the President, a proposition we do not accept. Stated simply, “separation-of-powers doctrine does not bar every exercise
of jurisdiction over the President of the United States.” Nixon v. Fitzgerald, 457 U.S. 731, 753-54 (1982). Rather, “it is…settled that the President is subject to judicial process in appropriate circumstances,” Clinton v. Jones, 520 U.S. 681, 703 (1997)”, page 69). But the court also refused to enter an injunction not because it felt it could not but
though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,”….Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.
Pages 72-74.
Running a designated public forum, if you don’t want to see the tweets, you can mute the tweeter; you cannot block them. Viewpoints must be heard (or tweeted). You don’t need to listen. but you cannot discriminate against them because you do not like them.
Will the President and his staff comply with the court’s opinion? Since an appeal is likely (in this instance to the Second Circuit) and maybe on to the Supreme Court, I think it is highly unlikely that they will comply at least until the appeals are done or they don’t appeal further. And even then I don’t hold out much hope. Nevertheless, it is a major First Amendment opinion in the area of social media.
To be sure, I’ll be keeping track of this one.
NEXT UP: Opinion day from the Supreme Court on Monday. 29 cases to go, including Masterpiece, Gill, Carpenter, Janus, Husted, Wayfair and the Travel Ban case. It is going to be a crazy month of June.