The Federalist Society is pleased to announce its Student Blog Initiative, a project of the Practice Groups and the Student Division. An inaugural group of eight students will contribute to the Federalist Society's blog throughout this academic year. Student contributors accepted into the program are held to the same rigorous standards as the regular and guest contributors to the blog, which exists as a forum for experts to provide thoughtful, balanced commentary in an engaging, accessible manner.
Each student in this select group drafts posts on legal, constitutional, and policy issues, receives feedback and revisions from volunteer experts, and has the opportunity to share his or her work on the Federalist Society's widely viewed platforms.
The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the authors.
In August 2020, the Trump administration filed a petition for a writ of certiorari in Trump v. Knight First Amendment Institute, asking the U.S. Supreme Court to determine whether the First Amendment prohibits a government official from blocking Twitter users. What follows is a background of the case, an analysis of similar cases, and a brief discussion of its implications.
The Second Circuit’s opinion
In an April 2019 decision, the U.S. Court of Appeals for the Second Circuit held that President Donald Trump acts in an official, government capacity, rather than as a private citizen, when he uses the Twitter account @realdonaldtrump. Although President Trump established the account in March 2009, well before he was even a candidate for public office, the Second Circuit cited uncontested evidence of “pervasive government involvement with, and control over, the [a]ccount.”
The Second Circuit further held that the Twitter account was a public forum, as it “was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation.” Because the account is such a forum, the court reasoned, viewpoint discrimination is prohibited.
“By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment prohibits,” the court concluded. According to the Second Circuit, the president was not required to listen to the plaintiffs’ speech, but the speech restrictions at issue burden their ability to engage with other Twitter users who may be speaking to or about the president. The Second Circuit also rejected the government’s alternative argument that the account is government speech, as the case turns on the president’s supervision of the interactive features of the Twitter account, not on the president’s tweets themselves.
The Trump administration’s arguments
The Trump administration’s argument hinges on whether the president is acting in his government or personal capacity when he blocks Twitter users. In its petition, the government argues that, while the president at times uses the account for government purposes, his decisions of whom to block are private conduct. The government asserts that “[b]y ignoring the critical distinction between the President’s (sometimes) official statements on Twitter and his always personal decision to block respondents from his own account, the opinion blurs the line between state action and private conduct—notwithstanding this Court’s repeated and recent exhortations to heed that line carefully in applying the First Amendment.”
The government contends that the First Amendment doesn’t apply because the speech is occurring on President Trump’s “personal property.” The petition analogizes the case to the Court’s 2019 5-4 decision in Manhattan Community Access v. Halleck, authored by Justice Kavanaugh. In Halleck, the Court held that a non-profit corporation created to operate a cable operator’s public-access channels, which New York law required it to host, was a private actor not subject to the First Amendment when it suspended film producers in what was alleged to be viewpoint discrimination. The Trump Administration argues that, just as the non-profit in Halleck was not transformed into a state actor because it hosted public-access channels, here President Trump’s personal Twitter account is not transformed into a state actor because he tweets about matters related to official government business.
What have other courts done?
President Trump is not the only public official to be sued for blocking critics on social media. County sheriffs, school board members, state judges have been accused of violating the First Amendment for moderating or censoring their social media accounts. The Fourth Circuit has taken a similar view to that of the Second Circuit, holding that a public official who used a Facebook page as a tool of her office exercised state action when blocking a constituent. Similarly, although the court did not reach the merits, the Fifth Circuit has held that a plaintiff sufficiently pled that a county sheriff’s office violated the First Amendment when it allegedly carried out a policy of removing “inappropriate” comments.
District courts have been divided on the issue. For example, former Kentucky Governor Matt Bevin was sued for deleting Facebook comments and blocking Twitter users on his official social media accounts. A Kentucky federal district court initially denied an injunction against the practice after it determined that Governor Bevin’s social media accounts were privately owned channels of communication. The case later settled after Governor Bevin lost reelection.
Further, members of both political parties have been accused of unconstitutionally blocking critics. Last year, a former Democratic state assemblyman Dov Hikind sued Rep. Alexandria Ocasio-Cortez after she blocked him from her personal Twitter account. She eventually unblocked Hikind and the case settled.
Consequences for the First Amendment online?
If the Court takes up the Trump case, it will be one of the first internet speech cases since Justice Kavanaugh replaced Justice Kennedy in 2018.
Kennedy authored the Court’s 2017 Packingham v. North Carolina decision, in which he was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Kennedy said for the Court that social media platforms are “the modern public square” as they are “the principal source for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”
While the Court was unanimous in striking down a North Carolina law banning convicted sex offenders from using social media, Justice Alito wrote separately for himself, Chief Justice Roberts, and Justice Thomas; these Justice had concerns about how far the Court went in its language about how the First Amendment applies online. Alito’s concurrence expressed concern about the Court’s “loose rhetoric” and “undisciplined dicta” reasoning that “if the entirety of the internet or even just ‘social media’ sites are the 21st century equivalent of public streets and parks, then States may have limited ability to restrict the sites that may be visited by even the most dangerous sex offenders.”
Notably, the Knight Institute, which brought the case, has said that it wants the Court to leave the Second Circuit’s ruling in place. Trump v. Knight First Amendment Institute could test how much the Court is willing to extend the First Amendment’s application online. It is possible that the Court could take a somewhat narrower view than it has in the past and find that, while the First Amendment bars government speakers from certain moderation or censorship on official accounts, these speakers also have significant control over their personal social media accounts. The Court could also go farther and limit Packingham’s holding in finding that the social media accounts of public entities are not, in fact, public forums.