A three-judge panel from a federal appeals court in Manhattan heard arguments on Tuesday in a case that might sound like little more than an odd souvenir of these strange times, but that in fact raises a novel First Amendment question.
At issue is whether President Trump can block people from seeing the messages he posts on his personal Twitter account, @realDonaldTrump — something he has done a fair number of times, while also using the platform to conduct presidential business, like dismissing his secretary of state and barring transgender troops from serving in the military.
A few months into his presidency, Mr. Trump and his social media director, Dan Scavino, were sued by seven plaintiffs — all active Twitter users and ardent critics of the president — who had been blocked from seeing the president’s Twitter posts. That meant they also couldn’t reply or see other people’s responses to his tweets.
“Because of the way the president and his aides use the @realDonaldTrump Twitter account,” the plaintiffs in Knight Institute v. Trump said in their complaint, “the account is a public forum under the First Amendment.” They asked a federal judge to declare the blocking a form of “viewpoint-based exclusion” and to order that their access be restored.
Last year, the judge largely agreed, leaving Mr. Trump no choice but to comply with the Constitution and unblock the plaintiffs — as well as dozens of other users who came forward during the litigation.
That could have been the end of it, but the Justice Department appealed. This week, lawyers for the government argued before the United States Court of Appeals for the Second Circuit that Mr. Trump can block whomever he likes on Twitter, because he does so as a private citizen. And even if that were not the case, the lawyers said, Twitter is a private company, not a public forum where the First Amendment applies.
The court appeared skeptical on Tuesday. Peter Hall, one of the judges on the panel, noted the oddity of the Justice Department representing Mr. Trump in his personal capacity. “It’s curious to me that the Department of Justice is here representing, essentially, a private entity,” he said.
What seems beyond dispute is that Mr. Trump’s tweets — including recent ones regarding rolling back sanctions on North Korea and recognizing the Golan Heights as Israeli territory — amount to official statements. The Trump administration has admitted as much in letters to Congress and court filings.
But the broader import of this case is what it says about social media as a public forum where people interact with those who represent them — and where the First Amendment should apply with as much force as in the public square.
The case has implications far beyond the current White House occupant. Public officials everywhere are increasingly turning to Facebook, Twitter and Instagram to interact with constituents beyond town halls and City Council meetings. In turn, judges are beginning to take notice — by accepting the premise that the First Amendment applies on social media spaces. As the Supreme Court recognized in 2017, social media “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Should elected officials get to decide who can participate in these electronic town halls?
In January, a federal appeals court in Virginia said no, becoming the first in the nation to rule that the First Amendment prohibits a local official from discriminating against the viewpoints of a constituent on Facebook. In that case, the chairwoman of the Loudoun County, Va., Board of Supervisors was found to have violated the free-speech rights of a local resident whom she banned for 12 hours from her official Facebook page.
Should the Second Circuit follow suit and apply the same standard to Mr. Trump and his Twitter use, more public officials will need to think twice before hitting the “block” button — or about taking other actions that, in the online marketplace of ideas, may be seen as punishing people for their views.