By Nicholas Birdsong
Earlier this month, the 2nd U.S. Circuit Court of Appeals declared it unconstitutional for President Donald Trump to block his critics on Twitter.
The decision, which affirmed the lower court’s ruling, may signal how First Amendment doctrine limits public officials’ use of social media in other contexts as well.
Knight v. Trump centered around the account @realDonaldTrump. Although originally created about seven years before Trump became president, the White House has since used the account as a channel for communicating and interacting with the public about official matters since his inauguration in 2017.
The plaintiffs in Knight were blocked from interacting with @realDonaldTrump “after posting replies in which they criticized the President or his policies...”
The court rejected the argument that the account was “personal and private” and therefore not subject to the First Amendment’s prohibition against government regulation of private speech. Despite being created when Trump was a private citizen, the subsequent “substantial and pervasive government involvement with, and control over” the account effectively converted it to an official channel. The president’s act of blocking the plaintiffs was consequently considered an official state action that limited their ability to interact on the platform and express contrary views.
The First Amendment provides some room for reasonable government regulation of speech when a forum is non-public. The president’s attorneys argued that Twitter fell under this category because Twitter is privately owned. This argument failed to convince the court, however. Despite the president’s limited control and lack of ownership over the platform, enough control existed that he was able to prevent plaintiffs from participating in the public discussion.
Attorneys on behalf of the president also argued that the plaintiffs were not actually prevented from viewing or expressing themselves regarding Trump’s tweets. Rather, they argued that blocking only prevented the plaintiffs from speaking directly to Trump.
The court found, however, that the blocked accounts were prevented from replying, retweeting and liking the posts, all of which “are undeniably speech.” Although workarounds could have been used to view or engage with the president’s tweets, such as logging out and creating a new account, conduct that violates the First Amendment needs only to burden speech, not prevent it altogether.
The final issue considered in the opinion was whether Trump’s blocking of critics constituted government speech. Speech by the government is not required to be viewpoint-neutral by the First Amendment. But while the president’s tweets would constitute government speech, the court found that blocking only served to limit the ability of others from engaging with those tweets.
Trump is far from alone in his use of social networks to engage with voters. Limited data exists on how many public officials use social media, but available research indicates that it is nearly universal. One survey from 2012 found that only 16% of state government officials lacked any form of social media presence. The average state legislature has 58% of members on Facebook and 65% on Twitter, according to a 2017 survey.
State and local public officials have faced similar First Amendment barriers to blocking constituents. In January, the 4th U.S. Circuit Court of Appeals found that a county government official from Virginia violated the First Amendment when blocking a constituent from an official Facebook page. Similar issues have been recently litigated, or are currently being litigated, in Colorado, Wisconsin, Maine, Missouri and elsewhere.
Although public officials may not be able to always block negative voices from social media accounts, several alternative means of managing abusive users online are discussed in an article in the March 2019 edition of State Legislatures magazine. NCSL also maintains a list of example social media policies and related resources that public officials can use.
Nicholas Birdsong is a policy associate in the Center for Ethics in Government at NCSL.