A federal judge ruled Wednesday that President Donald Trump has to stop blocking people on Twitter because it violates the First Amendment — the first time the courts have had to weigh in on presidential tweets.
Judge Naomi Reice Buchwald, a judge in the Southern District of New York appointed by President Bill Clinton, ruled that Trump blocking Twitter users from his @realDonaldTrump account because he disagrees with their views infringes on those users’ First Amendment rights because the president’s Twitter account is a public forum.
Instead, Buchwald suggested, Trump could just mute his critics instead.
The Knight First Amendment Institute at Columbia University filed the suit, along with a handful of individuals whom Donald Trump blocked. Dan Scavino, Trump’s social media guru who has access to the Twitter account, was also named in the suit. (As was Hope Hicks, but she’s since left, and White House press secretary Sarah Huckabee Sanders, who actually doesn’t have access to the president’s Twitter account, according to the judge.)
Blocking is unconstitutional. But Trump can mute all he wants.
The judge ruled that the president’s Twitter account is a public forum, just like a public park might be.
“We hold 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,” Buchwald wrote in her definitely not tweet-length opinion, “that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”
Her reasoning was that Trump, since his inauguration, has used his @realDonaldTrump account to communicate with the public about his administration and policy decisions. He announced a ban on transgender military service. He announced he was nominating Christopher Wray as FBI director and, after the suit was filed, declared he was firing Secretary of State Rex Tillerson and Secretary of Veterans Affairs David Shulkin via tweet.
Mike Pompeo, Director of the CIA, will become our new Secretary of State. He will do a fantastic job! Thank you to Rex Tillerson for his service! Gina Haspel will become the new Director of the CIA, and the first woman so chosen. Congratulations to all!— Donald J. Trump (@realDonaldTrump) March 13, 2018
This judge cites some of these examples to say, random “WITCH HUNT” tweets aside, @realDonaldTrump tackles official business, and so the account is governmental, not personal.
The judge acknowledged that, yes, there probably were workarounds to seeing what the president said. But ultimately, it didn’t matter. Twitter, she said, is a “public forum” — albeit one with “no extended historical practice.” And because Twitter is a public forum, blocking users and stopping them from replying infringes on their freedom of speech.
“To be sure, we do not suggest that the impact on the individual plaintiffs (and, by extension, on the Knight Institute) is of the highest magnitude. It is not,” Buchwald wrote. “But the law is also clear: the First Amendment recognizes, and protects against, even de minimis harms.” In other words, a First Amendment violation is a First Amendment violation, even if all you’re losing is a chance to yell at the president online in 280 characters or fewer.
The judge also had a very practical solution to the president’s dilemma: Why not just mute people? You get all the benefits of blocking — not having to get @’ed by people who hate you — with none of the unconstitutional downsides of limiting citizens’ speech.
“Critically ... the muted account may still reply directly to the muting account, even if that reply is ultimately ignored,” the judge said, adding a blocked user can’t reply, which makes all the difference.
Whether the president (or more likely, Dan Scavino) will go in and unblock the haters and the losers isn’t clear. What is clear is that Trump will probably want to block these accounts even more now.