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First Amendment Issue Regarding Trump’s Twitter Account Pending Before United States Supreme Court

Donald Trump is soon leaving office, but there is a case that the United States Supreme Court may hear concerning whether the President has a right to block people on Twitter.  Donald Trump v. Knight First Amendment Institute at Columbia University is a case that concerns the president blocking people on Twitter.  If we’ve learned anything these past four years, it’s that Trump loves to use his personal Twitter account.  The Obama Administration created the @POTUS account in 2015, and since then, all presidents get access to the @POTUS Twitter account when they take office.  Donald Trump has access to this account, but he overwhelmingly uses his @realDonaldTrump Twitter account that he has had since 2009.  He has continued to use his unofficial personal account while in office on the daily, sometimes posting over 100 tweets in a single day.

Like any social media user, Trump will block individuals that he does not care to associate with.   However, this novel issue begs the question;  if a public official who uses a social media account as an extension of his office—by, for example, making official announcements, inviting members of the public to respond, and allowing members of the public to communicate with one another about matters relating to government—violates the First Amendment when he ejects members of the public from that forum based on viewpoint.

Does the Public forum Doctrine precent President Trump from blocking followers?

The public forum doctrine is used to determine the constitutionality on speech restrictions.  The public forum doctrine originated in the Supreme Court in Hauge v. Committee for Industrial Organization:  “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”

The public forum may be created by government designation of a place or channel of communication for use by the public at large for assembly and speech.  Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.  In 2020, social media is a modern public forum, used for communication and the exchange of ideas.  The Petitioners in this case intended to open up a forum for the public at large to discuss the presidency on Twitter. Criticism is not a legitimate basis on which a public official may block speech.  The only acceptable situations to exclude an individual from a government social media account is unprotected speech.  Threats, incitements of violence, and obscenity all fall into this category.  Placing limits on the public forum, such as designated times where people may share ideas, is also acceptable, so long as it is done in a viewpoint neutral manner.  None of these limited exceptions allow for excluding individuals for opinions with which a government official disagrees.

The plaintiffs in this case are a group of people who have been blocked for one reason or another by the president’s Twitter account.  They allege that this his personal Twitter account constitutes a public forum, and that blocking access to it a violation of their First Amendment rights, as he was blocking these individuals based on their viewpoints.  Trump’s lawyers argue that this account is personal and not a part of the government, relying on the fact that he created the account before taking office, and has been using it for over ten years.

The Second Circuit held that Trump engaged in unconstitutional viewpoint discrimination after he blocked users from his Twitter account for posting comments he disliked.  The Court found overwhelming evidence that the account was used for official purposes and that the blocking was a restriction by the government, rejecting Trump’s claim that his Twitter account is personal.  The Second Circuit concluded that Trump violated the First Amendment by blocking those critical of him.

Trump petitioned the Supreme Court to hear this case.  It is unclear what will happen to this case now that Trump has lost re-election, and we will have to wait and see if the Supreme Court grants certiorari.  The Second Circuit made the correct ruling of law but the Supreme Court could hear the issue if it concludes that it is an important enough issue to clarify existing First Amendment Law.

The Court has previously held that social media is “the modern public square” and is now one of the most important places for the exchange of views.  This holding in Packingham v. North Carolina struck down a North Carolina law that prohibited sex offenders from using social media.

Attorney DelSignore Filmed a video on his thoughts on this case:

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