Trump Blocking Critics On Twitter Is Unconstitutional, Judge Rules

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Kevin Daley Supreme Court correspondent
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A federal judge in New York ruled Wednesday that President Donald Trump cannot lawfully block critics from his personal @realDonaldTrump Twitter account.

U.S. District Court Judge Naomi Reice Buchwald explained that parts of Trump’s Twitter account is properly thought of as a “public forum” from which users may not be excluded on the basis of their views.

“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, 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,” the decision reads.

For purposes of the First Amendment, a public forum is an open space in the government’s control reserved for free exchange or expression of opinion. Government interference in such spaces is subject to a high degree of judicial scrutiny. Buchwald emphasized that Trump’s Twitter account itself should not be treated as a forum. Rather, his individual tweets and the interactive threads attending them are, in fact, public forums.

The opinion notes the plaintiffs have no right to have their views heard or amplified by the government. Still, they cannot be barred from accessing Trump’s tweets and the discussions taking place around them.

In a crucial section, Buchwald distinguishes between “blocking” and “muting.” Where Trump’s blocks are unconstitutional, muting lets the president avoid encounters with hostile users while still allowing them access to the @realDonaldTrump account. As such, muting is acceptable practice.

The decision avoids broaching the thorny matter of retweets, though it raises the prospect that Trump’s RTs should be considered government speech. Such a finding could have decisive implications in other cases, as the president has retweeted accounts associated with fringe groups promoting hateful views.

Relief provided to the plaintiffs is quite narrow. The judgement in the case is merely declaratory, and does not directly require the president and other officials to unblock any user. Rather, it assumes that the Trump administration will do so, in accordance with their duty to follow the law. As a matter of etiquette, courts often avoid issuing direct orders to the president.

The Knight First Amendment Institute at Columbia University organized the lawsuit. Speaking after the ruling, Institute lawyers said the decision should govern all interactions on social media between public officials and their constituents.

“The First Amendment prohibits government officials from suppressing speech on the basis of viewpoint,” said Katie Fallow, senior staff attorney at the Institute. “The court’s application of that principle here should guide all of the public officials who are communicating with their constituents through social media.”

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