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Knight First Amendment Institute at Columbia University v. Trump

United States Court of Appeals for the Second Circuit · 2019 · Constitutional Law

Constitutional LawFirst AmendmentPublic ForumViewpoint DiscriminationState ActionGovernment SpeechSocial MediaTwitter

Facts

President Trump created the @realDonaldTrump Twitter account in 2009, but since taking office he used it almost daily as a channel for communicating and interacting with the public about his administration, including announcing official decisions, policy changes, staffing changes, and foreign policy matters. The account was publicly presented as official: it was registered to Donald J. Trump as "45th President of the United States of America," used White House staff assistance, was treated by the White House as a source of official statements, and the National Archives regarded the President's tweets as official records. The account's tweets and interactive features were generally open to the public without restriction. In May and June 2017, the President blocked the individual plaintiffs after they posted replies criticizing him or his policies, which prevented them while logged in from viewing his tweets, replying, retweeting, liking, and using the account's webpage to participate in associated comment threads.

Issue

When the President used Twitter's blocking function to exclude users from the interactive features of @realDonaldTrump because they criticized him or his policies, did he act in a governmental capacity such that the First Amendment barred that viewpoint-based exclusion? Relatedly, were the account's interactive features a public forum, and were the blocked users excluded from protected expressive activity rather than merely denied access to the President personally?

Rule

If a public official uses a social media account as an official instrument of governance and opens its interactive features to the public at large, the interactive space becomes a government-controlled forum for private speech, and the official may not exclude users from that space based on viewpoint. Whether First Amendment constraints apply is a fact-specific inquiry informed by how the official describes and uses the account, to whom its features are made available, and how government officials and agencies regard and treat the account. The government speech doctrine protects the official's own posts, but not the replies, retweets, likes, and mentions generated by other users.

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The mayor of Cleveland, Nora Patel, created a social media account years before taking office. Since becoming mayor, she has renamed the profile "Nora Patel, Mayor of Cleveland," uses city employees to post transit updates and emergency directives, and the city's official website links residents to the account for announcements. After a resident criticizes her housing policy in the comment thread, Patel blocks him from the account.

Is the block most likely subject to First Amendment constraints?

Explanation. The majority emphasized a fact-specific inquiry focused on how the official describes and uses the account, to whom its features are made available, and how government actors treat it. An account that predates office can still become government-controlled when the official presents it as an office-related account, uses staff to run it, and employs it as a tool of governance. Government ownership in a formal property sense is not required; sufficient government control is enough. Because Patel used the account in an official capacity, her use of the blocking function is likewise state action. (Derived from Knight First Amendment Institute at Columbia University v. Trump (2019).)