Twitter Users & the First Amendment: Can Public Officials Block Political Dissenters on Social Media?

On May 23, 2018, a federal district court in New York issued a decision regarding whether a public official may, consistent with the First Amendment, “block” a person from the official’s Twitter account in response to the political views that person has expressed. The court also asked whether it matters if that public official is the President of the United States. Although the decision is not binding in California, it serves as a reminder that the growing trend of social media use creates unique challenges for public officials, and gives rise to issues at the intersection of privacy and free speech.

This dispute centered on a social media platform, Twitter, and the @realDonaldTrump account. Plaintiffs Knight First Amendment Institute at Columbia University, et al. sued Defendants Donald J. Trump, Hope Hicks, Sarah Huckabee Sanders, and Daniel Scavino (members of the Trump Administration) alleging Defendants violated the First Amendment when blocking other users from engaging with the @realDonaldTrump Twitter account based on their political viewpoints expressed on Twitter.

The United States District Court for the Southern District of New York held that portions of the @realDonaldTrump account – the “interactive space” where Twitter users may directly engage with the content of the President’s tweets – are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such place is a designated public forum, and that the blocking of the individual plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

Twitter is a social media platform with over 300 million users, with 70 million in the United States. In order to interact with other users on the Twitter platform, an individual user must create an account with a username, indicated by the “@” symbol followed by a descriptive name, also called a “handle.” An account holder has the option to follow other users, and tweets or post from those users will appear on a landing page called a “timeline.” The “defining feature” of Twitter is the user’s ability to report or respond to others’ messages, and to interact with other Twitter users in relation to those messages. There are also two ways to limit interaction: blocking and muting. Blocking allows a user to prevent another user from interacting with her account on the Twitter platform, which is initiated by the user herself.

The @realDonaldTrump account was created in 2009, before the President’s inauguration, but is now used as a channel for communicating and interacting with the public about his administration, and occasionally to communicate about other issues not directly related to official government business.

A group of individual Twitter users who each tweeted a message critical of the President or his policies in reply to a tweet from the @realDonaldTrump account each had their account blocked shortly thereafter.

In considering the First Amendment arguments, the court found that the government’s control of @realDonaldTrump was enough to create a public forum for several reasons. First, President Trump and David Scavino (White House Director of Social Media) directly control the content published by @realDonaldTrump. They can also prevent other users from accessing the content and participating in the interactive space associated with tweets sent by the @realDonaldTrump by blocking other users. The court found those elements of control to be enough to establish the government-control element.

Second, the @realDonaldTrump account is registered to Donald J. Trump, “45th President of the United States of America, Washington D.C.,” and the President’s tweets must be preserved under the Presidential Records Act. Also, because the account has been used in the course of the President’s appointment, removal, and foreign policy powers, the court found that control was governmental in nature rather than that of a private individual. The court also found that the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account, and used the account to take actions that are reserved exclusively to the President.

The content of the tweets and the user’s timeline are government speech not subject to First Amendment protection. However, the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump are more associated with the replying (or blocked) user and are therefore the private speech of the responding user.

The @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria, and any member of the public can view his tweets, and anyone with an account can follow his account (unless blocked). The interactivity of Twitter and the President’s tweets accommodates a substantial body of expressive activity, which together makes the @realDonaldTrump a public forum.

The court determined that, because the plaintiffs were blocked as a result of viewpoint discrimination, the continued exclusion of these individuals based on viewpoint was deemed impermissible under the First Amendment. The court also determined the President’s own individual First Amendment rights did not supersede that of the plaintiffs, and stated that when the government goes beyond amplifying certain speakers and not engaging with others, the activity restricts speech and the exchange of ideas protected by the First Amendment.

Potential Impact on Public Officials in California

As noted above, this case is not binding on California, but may serve as a bellwether regarding official government social media accounts. However, this area of law is still unsettled. In contrast to the May 23, 2018 case involving President Trump, in a March 30, 2018 order, the Kentucky Eastern District Court, found that Kentucky Governor Bevin had the right to block people from his Facebook and Twitter accounts. In its ruling, the Kentucky Eastern District Court found that if Governor Bevan was prohibited from blocking certain users, that his accounts could be flooded with spam and that the entire forum would be effectively closed. We expect to see more cases addressing these complex issues over the coming years.

In the case involving President Trump, the court distinguished the situation where a public official blocks another individual from her personal Twitter account that is not “impress[ed] with the trappings of her office and is not used to exercise the authority of her position.” If a public official using a personal Twitter account does not conduct formal business or convey messages implying an official capacity, it is likely permissible under the First Amendment for him or her to block another user on Twitter.

The court also indicated that “muting” another user does not go as far as blocking, and may be permissible conduct because the muted user can still engage with the muting account.

Bottom line: If a public official utilizes social media, it is important to consider how to respond to comments or interaction from other social media users, and be conscious of interfering with free speech rights while using “official” social media accounts.

Questions

If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Maggie Stern
mstern@kmtg.com | 916.321.4541