JOHN SAMPLES, CATO INSTITUTE
The U.S. Court of Appeals for the Second Circuit has affirmed a district court’s ruling that Donald Trump may not block Americans from viewing or responding to his tweets. In an opinion largely mirroring that of the district court, Judge Barrington D. Parker determined that Trump’s use of his account in his capacity as President of the United States rendered it a limited public forum. As such, Trump’s decision to block the accounts of individual critics amounted to government viewpoint discrimination, rather than a private exercise of associational rights.
The case hinged upon whether or not Trump used his Twitter account in an official capacity. Initially, I expressed skepticism, writing;
The question turns upon our understanding of the purpose and character of Trump’s Twitter presence. Is @realDonaldTrump simply the private Twitter account of a man who happens to be president, or does it constitute a designated public forum, as asserted by Jaffer?
When Knight Institute v. Trump was first filed in June of 2017, @realDonaldTrump looked more like a leftover campaigning tool than an instrument of policy promulgation. Trump had inherited @POTUS, the official presidential account, from Barack Obama, and to the extent that Trump used his personal account to conduct official business, his proclamations seemed untethered from the positions officially taken by his administration.
However, over the past two years, as Judge Parker’s opinion notes in granular detail, @realDonaldTrump has been repeatedly employed to announce the policy positions, and Trump’s tweets are popularly understood to be the official positions of his administration. President Trump has used @realDonaldTrump to announce the withdrawal of U.S. troops from Syria, the selection of Dr. Christopher Waller for the Federal Reserve Board, and, just this past weekend, to reveal that the administration aims to re-include a citizenship question in the 2020 census. Parker also cites the White House’s designation of Trump’s tweets as “official statements,” and other government agencies’ affirmation of the official nature of Trump’s tweets, writing; “we note that the National Archives, the agency of government responsible for maintaining the government’s records, has concluded that the President’s tweets are official records.” Given this evidence, it would seem that @realDonaldTrump is far from a private, personal account, engaging the usual First Amendment prohibitions on content-based restrictions in public fora.
While no one in American politics utilizes Twitter quite so adroitly as Donald Trump, this decision will nevertheless bind other politicians and state officials who make use of social media, particularly those who comingle public and private functions within the same accounts. The decision cites Packingham, but only to establish that speech on social media receives no less First Amendment protection than other speech transmitted via other mediums. While the outcome of Knight Institute v. Trump prevents Donald Trump, and other public officials, from making use of Twitter’s block feature, it has no bearing on ongoing debates about the limits of private moderation or recent attempts to categorize platform access as a “civil right”.
John Samples is vice president and publisher at the Cato Institute. He oversees the Cato Institute Press which publishes books by Cato staff and external authors on public policy topics and libertarian ideas. He also manages Cato’s adjunct scholar program. He founded and directs Cato’s Center for Representative Government, which studies government institutional failure and public opinion. Finally, Samples oversees the work of the Center for the Study of Science.