The lawsuit, which we and our colleagues filed six months into Mr. Trump’s tenure, will likely be remembered as an artifact of the Trump era—a collision of the First Amendment, the pathologies of social media and a thin-skinned, attention-craving demagogue indifferent to constitutional limits on his authority.

But the case will have lasting effects, even if the appeals court decision holding that Mr. Trump acted unconstitutionally has now been vacated. The case has broad implications for other officials and for platforms other than Twitter, and it will shape the digital public sphere—in valuable ways—for a long time to come.

The case grew out of Mr. Trump’s decision to conduct his presidency by tweet. From the beginning, he used his Twitter account to make cabinet appointments, announce policy initiatives and engage with foreign leaders. He used it to harangue and demean his perceived adversaries, including journalists and former officials of his own administration.

Harnessing Twitter’s interactive features, he used his account to communicate directly with the public, unfiltered by what he called the “fake news media.” To his critics—and to some of his supporters, too—Mr. Trump’s Twitter habits were undignified or worse, an insult to the office. He saw things differently. “My use of social media is not Presidential—it’s MODERN DAY PRESIDENTIAL,” he tweeted in the summer of 2017.

The core proposition of the lawsuit was that Mr. Trump’s account had become a public forum for First Amendment purposes because it was a space that a government official had opened to the public for expression. It’s well established that the First Amendment prohibits public officials from excluding citizens from public forums such as city council meetings, school board meetings and legislators’ town halls because of their political viewpoints. We argued that officials who use their social media accounts as extensions of their offices should be subject to the same rule.

Some legal scholars questioned whether the public forum doctrine should be applied on private platforms. We pointed out that courts had applied the doctrine to private property before, and that the alternative would be to allow city councils and other public bodies to evade the First Amendment simply by moving their meetings to hotel conference rooms. The district court and the appeals court ultimately saw things our way.

After the district court issued a decision in our case, the White House unblocked our clients and dozens of others who had been locked out of Mr. Trump’s comment threads after they criticized the president or his policies.

Our case focused on the former president, but its implications are broader. Public officials and government agencies all over the country now use social media to communicate with the public. Representative Alexandria Ocasio-Cortez, Democrat of New York, has used her Twitter account to solicit her constituents’ opinions about her legislative agenda. The Centers for Disease Control and Prevention says its Twitter account is for sharing “daily credible health & safety updates.” Florida’s Division of Emergency Management uses its account to warn residents of hurricanes and inform them about emergency relief.

When officials and agencies use interactive social media in these ways, they create spaces that play important functions in our democracy. Their accounts can be sources of official information, channels through which citizens can petition their representatives for “redress of grievances” (as the First Amendment puts it) and forums in which citizens can exchange information and ideas. The same reasoning that led the appeals court to hold that Mr. Trump couldn’t constitutionally block critics from his Twitter account makes clear that other government actors who engage in similar conduct do so at their peril.

In fact, since we filed the case, almost a dozen other courts have applied the First Amendment’s public forum doctrine in cases involving the social media accounts of legislators, mayors, city councilors and sheriffs. The effect of these judicial rulings extends beyond the litigants. Made aware of these rulings, many public officials who were excluding people from their accounts based on viewpoint have voluntarily changed their practices.

These rulings also have implications for government-run accounts on platforms other than Twitter. The Army and Navy have been using Twitch, a gaming platform, to livestream e-sports as part of their recruiting efforts. Those who watch these multiplayer video games on the military’s Twitch channels can also exchange messages in moderated forums. The exchanges can be wide-ranging, but until recently moderators made a practice of ejecting participants who asked questions about war crimes. Moderators changed course only after the court’s decision in Mr. Trump’s case was brought to their attention.

These developments in the law, and in the practice of government agencies and officials, should be welcomed. The technology may be new, but the rule that government actors can’t exclude people from public forums on the basis of viewpoint has been practically synonymous with the First Amendment for decades. It’s a good thing that speakers who were previously silenced can now voice their dissent, that public officials who were previously shielded from the views of their constituents are now exposed to them and that digital forums that were previously echo chambers are now more ideologically diverse.

Over the next years, the courts, legislatures and the public will have to answer a slew of thorny questions about free speech and social media, including about the extent of Congress’s power to regulate the companies. As Justice Clarence Thomas noted Monday in connection with the Supreme Court’s order, some of these questions were presented starkly by the major social media companies’ decision to deplatform Mr. Trump after the siege on the Capitol. In comparison with these questions, the one presented by our case was easy.

But if the proposition that government officials may not exclude speakers from public forums because of their political views is straightforward, it’s also foundational to our democracy. Even those disinclined to thank Mr. Trump for anything can perhaps thank him for having given the courts an occasion to reaffirm this basic principle.

“This case was about a very simple principle that is foundational to our democracy: Public officials can’t bar people from public forums simply because they disagree with them. This simple principle helps ensure that people aren’t excluded from the democratic process on the basis of their political views, that public officials aren’t insulated from the opinions of their constituents, and that expressive forums that are important to our democracy aren’t transformed into echo chambers,” said Jameel Jaffer, the Knight Institute’s Executive Director, who argued the case before the Second Circuit. “While we would have liked the Supreme Court to leave the Second Circuit’s ruling on the books, we’re gratified that the appeals court’s reasoning has already been adopted by other courts, and we’re confident it will continue to shape the way that public officials use social media.”

The district court ruled in May 2018 that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president acted unconstitutionally when he blocked speakers from that account on the basis of viewpoint. A unanimous three-judge panel of the Second Circuit affirmed that ruling in July 2019, and in March of last year, the Second Circuit rejected a request by the Trump administration for a full-court review of that ruling. The administration petitioned the Court to review that decision in August 2020. The brief conceding that the case had become moot was filed late on January 19, 2021, by the outgoing Acting Solicitor General. On January 21, the Knight Institute responded.

In his concurrence, Justice Thomas conceded that the plaintiffs “have a point … that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum,” but he highlighted the control exercised by the social media companies themselves. “Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.”

“We’re pleased with what we were able to accomplish in this litigation—not just forcing President Trump to unblock our clients and dozens of others from his Twitter account, but also establishing a precedent that other courts have invoked to preclude other public officials from silencing their social media critics,” said Katie Fallow, Senior Staff Attorney at the Knight Institute, who argued the case before the district court. “Public officials’ social media accounts play an increasingly important role in our democracy. As multiple courts have now recognized, the public forum doctrine applies to these accounts in the same way that it applies to expressive forums offline.”

The case involving President Trump’s Twitter account was the first major litigation filed by the Knight Institute, which was established by Columbia University and the Knight Foundation in 2016 to promote the freedoms of speech and the press in the digital age. The Institute has since filed other major lawsuits relating to government surveillance of visa applicants, public access to government records, and censorship of former public servants.

The Second Circuit was the second appellate court in the country to hold that a public official’s social media account can sometimes be a public forum under the First Amendment. In January 2019, in a case that Fallow argued, the U.S. Court of Appeals for the Fourth Circuit held that a local public official had violated the First Amendment by blocking a constituent from her Facebook page. Late last year, the Eighth Circuit heard argument in another case involving similar issues; the Knight Institute filed an amicus brief in that case and also participated in oral argument.

Read about the seven plaintiffs—Philip Cohen, Eugene Gu, Holly Figueroa, Nicholas Pappas, Joseph Papp, Rebecca Buckwalter-Poza, and Brandon Neely—who brought the lawsuit against Trump here. 

Read today’s decision here.

Read more about Knight Institute v. Trump here.

Lawyers on the case include, in addition to Jaffer and Fallow, Carrie DeCell, Alex Abdo, and Lyndsey Wajert of the Knight First Amendment Institute at Columbia University, and Jessica Ring Amunson, Tassity S. Johnson, and Tali R. Leinwand of Jenner & Block.

For more information, contact: Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

“The Justice Department is right that the case is moot, but wrong about why,” said Jameel Jaffer, the Knight Institute’s Executive Director, who argued the case before the Second Circuit. “The case is moot because President Trump’s repeated violation of Twitter’s terms of service led that company to shut down his account and to ban him permanently from its platform. Because it was President Trump’s own voluntary actions that made the case moot, the Supreme Court should leave the appeals court’s ruling in place.”

The district court ruled in May 2018 that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president acted unconstitutionally when he blocked speakers from that account on the basis of viewpoint. A unanimous three-judge panel of the Second Circuit affirmed that ruling in July 2019, and in March of last year, the Second Circuit rejected a request by the Trump administration for a full-court review of that ruling. The administration petitioned the Supreme Court to review that decision in August 2020. The brief conceding that the case had become moot was filed late on January 19, 2021, by the outgoing Acting Solicitor General. Because the brief was filed by Trump administration officials, it is not clear to what extent it reflects the views of the new administration. Read the brief here.

“The Supreme Court should reject the Trump administration’s last-ditch effort to have the Second Circuit’s decision vacated,” said Katie Fallow, Senior Staff Attorney at the Knight Institute, who argued the case before the district court. “But the truth is that the decision will continue to shape the way that public officials use social media even if it’s vacated. Many other courts have now adopted the Second Circuit’s analytical framework. And there is now widespread recognition that the principles we established in this case are important to protecting the vitality of public forums that are increasingly important to our democracy.”

After the Knight Institute prevailed in the district court, the White House unblocked the plaintiffs as well as dozens of others whom the president had blocked on the basis of viewpoint. The White House refused, however, to unblock two categories of individuals: those who cannot specify the tweet that provoked the president to block them, and those who were blocked before the president took office. In July 2020, the Knight Institute filed a second lawsuit against President Trump and his staff for continuing to block these critics. Read more about this related case here. 

The Second Circuit was the second appellate court in the country to hold that a public official’s social media account can sometimes be a public forum under the First Amendment. In January 2019, in a case that Fallow argued, the U.S. Court of Appeals for the Fourth Circuit held that a local public official had violated the First Amendment by blocking a constituent from her Facebook page. Late last year, the Eighth Circuit heard argument in another case involving similar issues; the Knight Institute filed an amicus brief in that case and also participated in oral argument.

Read about the seven plaintiffs—Philip Cohen, Eugene Gu, Holly Figueroa, Nicholas Pappas, Joseph Papp, Rebecca Buckwalter-Poza, and Brandon Neely—who brought the lawsuit against Trump here.

Read today’s brief here.

Read more about Knight Institute v. Trump here. 

Lawyers on the case include, in addition to Jaffer and Fallow, Carrie DeCell, Alex Abdo, and Lyndsey Wajert of the Knight First Amendment Institute at Columbia University, and Jessica Ring Amunson, Tassity S. Johnson, and Tali R. Leinwand of Jenner & Block.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

NEW YORK—Twitter announced late today that it was permanently suspending President Trump’s @realDonaldTrump account. Also today, in a Knight Institute lawsuit challenging President Trump’s practice of blocking critics from his Twitter account, the Supreme Court conferenced to consider the government’s petition to hear the case and is expected to rule on the petition as soon as Monday.

The following can be attributed to Jameel Jaffer, Executive Director of the Knight First Amendment Institute at Columbia University.

“We believe that Twitter’s decision to permanently block President Trump from its platform effectively moots the Justice Department’s petition for Supreme Court review in Knight Institute v. Trump. The Supreme Court conferenced about the petition today; it may rule on it as early as Monday. Of course, the Second Circuit’s decision—and the decisions of the multiple other courts that have since adopted the Second Circuit’s reasoning—will continue to shape the way that other public officials use social media.”

The following can be attributed to Katie Fallow, Senior Staff Attorney at the Knight First Amendment Institute at Columbia University.

“The core holding of Knight Institute v. Trump is that public officials who use their social media accounts as extensions of their offices cannot constitutionally block people from those accounts on the basis of viewpoint. This holding protects dissent, ensures that public officials aren’t insulated from the views of their constituents, and prevents digital forums that are increasingly important to our democracy from becoming echo chambers.”

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

“This case stands for a principle that is fundamental to our democracy and basically synonymous with the First Amendment: government officials can’t exclude people from public forums simply because they disagree with their political views,” said Jameel Jaffer, the Knight Institute’s Executive Director, who argued the case before the Second Circuit. “The Supreme Court should reject the White House’s petition and leave the appeals court’s careful and well-reasoned decision in place.”

The district court ruled in May 2018 that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president is therefore barred from blocking speakers from that account on the basis of viewpoint. A unanimous three-judge panel of the Second Circuit affirmed that ruling in July 2019 and in March of this year the Second Circuit rejected a request by the Trump administration for a full-court review of that ruling. Writing for the court, Judge Barrington D. Parker noted, “The critical question for First Amendment purposes is how the President uses the Account in his capacity as President,” and concludes, “These tweets are published by a public official clothed with the authority of the state using social media as a tool of governance and as an official channel of communication on an interactive public platform.”

“Public officials across the country now use social media as their main means of communicating with their constituents,” said Katie Fallow, Senior Staff Attorney at the Knight Institute. “In recent months, we’ve seen how vital these accounts are to ensuring that people get the information they need to understand public policies related to everything from Covid-19 to unemployment benefits. Blocking people from these forums denies them access to important information and deprives them of the opportunity to engage with the officials who represent them.”

After the Knight Institute prevailed in the district court, the White House unblocked the plaintiffs as well as dozens of others whom the president had blocked on the basis of viewpoint. The White House refused, however, to unblock two categories of individuals: those who cannot specify the tweet that provoked the president to block them, and those who were blocked before the president took office. Late last month, the Knight Institute filed a second lawsuit against the president and his staff for continuing to block these critics. Read more about this related case here. 

The Second Circuit was the second appellate court in the country to hold that a public official’s social media account can sometimes be a public forum under the First Amendment. In January of last year, in a case also argued by the Knight Institute, the U.S. Court of Appeals for the Fourth Circuit held that a local public official had violated the First Amendment by blocking a constituent from her Facebook page.

In a related development, the Knight Institute sent a letter last month to the U.S. Army and U.S. Navy Recruiting Commands demanding that they cease banning individuals on the basis of viewpoint from their esports Twitch channels. Subsequently, the Army and Navy announced that they would unban the banned users and revise their streaming policies and procedures. Read more about this advocacy work here. 

A copy of the government's petition is here.

Read more about Knight Institute v. Trump here. 

Lawyers on the case include, in addition to Jaffer and Fallow, Carrie DeCell, Alex Abdo, and Meenakshi Krishnan of the Knight First Amendment Institute at Columbia University, and Jessica Ring Amunson, Tassity Johnson, and Tali R. Leinwand of Jenner & Block.

For more information, contact: Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org. 

“We’re pleased that the full appeals court will leave the panel’s original ruling in place,” said Jameel Jaffer, the Knight Institute’s Executive Director, who argued the case before the Second Circuit. “The ruling is an important affirmation of core First Amendment principles as applied to new communications technology.”

In July of last year, a unanimous three-judge panel of the federal appeals court affirmed an earlier ruling by the U.S. District Court for the Southern District of New York that held that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president is therefore barred from blocking speakers from his account on the basis of viewpoint. Following the district court’s ruling, the president unblocked the plaintiffs but also appealed the decision.

“The First Amendment bars the president from blocking users from his account simply because he dislikes or disagrees with their tweets,” said Katie Fallow, Senior Staff Attorney at the Knight Institute. “This case should send a clear message to other public officials tempted to block critics from social media accounts used for official purposes.”

The Second Circuit was the second appellate court in the country to hold that a public official’s social media account can sometimes be a public forum under the First Amendment. In January of last year, in a case also argued by the Knight Institute, the U.S. Court of Appeals for the Fourth Circuit found in favor of Brian Davison, a Virginia resident who was temporarily blocked from the Facebook page of a local public official.

Read today's order denying en banc review here: https://knightcolumbia.org/documents/daa1a14eb1/2020.03.23_ECF-162_Order-denying-en-banc-petitiion.pdf

Read more about Knight Institute v. Trump here: https://knightcolumbia.org/cases/knight-institute-v-trump

Lawyers on the case include, in addition to Jaffer and Fallow, Alex Abdo, Carrie DeCell, Jake Karr, and Meenakshi Krishnan of the Knight Institute, and Jessica Ring Amunson, Tassity Johnson, and Tali R. Leinwand of Jenner & Block.

For more information, contact Lorraine Kenny, lorraine.kenny@knightcolumbia.org, 917-532-1623.

The following response can be attributed to Katie Fallow, Senior Staff Attorney at the Knight First Amendment Institute at Columbia University.

“Like many public officials, Representative Ocasio-Cortez uses her Twitter account to conduct the business of her office. The @AOC account is therefore a public forum, and accordingly the First Amendment precludes her from blocking people from the account based solely on their viewpoints.

“In other contexts, Representative Ocasio-Cortez has been an eloquent and effective champion of civil liberties. If she's blocking people on the basis of viewpoint, we hope she'll reconsider that practice in light of the appellate court’s ruling in Knight Institute v. Trump. Online abuse and harassment are real concerns, but public officials should address them in ways that also comply with the First Amendment.”

Read more about yesterday’s ruling here: https://knightcolumbia.org/content/knight-institute-responds-to-lawsuits-filed-against-rep-ocasio-cortez-for-blocking-critics-on-twitter

For more information, contact: Loraine Kenny, Knight First Amendment Institute, lorraine.kenny@knightcolumbia.org, 646-745-8510.

But ​​as campaign season heats up, an important distinction arises: Since a candidate isn’t a public official—and their social media account, even if political, is personal—the candidate can limit followers without violating the First Amendment. That holds true for a current government actor running for re-election, so long as that actor’s campaign account is separate from any official account and is used for campaign purposes only.

However, it’s important to note that designating or labeling an account as a “campaign account” is not in itself sufficient to escape First Amendment scrutiny. If a public official uses a “campaign account” to carry out official duties—such as to make announcements about the candidate’s currently held public office, to post about the candidate’s work in office, to advocate for certain legislation or measures the candidate is working on, or to engage with the public about actions taken by the candidate as a public official—then that account will still likely qualify as a government-run public forum.

The Knight Institute’s letters to Rep. Alexandria Ocasio-Cortez, Sen. John Cornyn, and Mayor Christina L. Shea of Irvine, California, help illustrate the factors considered in determining whether an account labeled as a “personal” or “campaign” account qualifies instead as a government-run public forum.  

Bottom line: True campaign social media accounts are not First Amendment public forums, as long as they are kept separate from official accounts or not also used for official purposes.

For further information on government officeholders and social media, visit our updated Social Media for Public Officials 101 fact sheet. We offer guidance on how public officials can maintain a personal social media account, why officials are prohibited from blocking people if they use their account as an extension of their office, how to adopt and share account policies, how to keep limits on users viewpoint-neutral, and how to enforce rules consistently and with due process.

If you’ve been blocked by a public official from that official’s government-run account, please email info@knightcolumbia.org to let us know.

During the hour-long program, part of a series on online information ecosystems, the pair addressed several topics, including the recent decision by the Supreme Court to end the Institute’s lawsuit challenging then-President Trump’s practice of blocking critics from his social media account, as well as the lawsuits revolving around controversial facial recognition startup Clearview AI that bring to the fore the rising tension between privacy and free speech.

Jaffer and Krishnan touched on the much-discussed concurring opinion by Justice Clarence Thomas in Knight Institute v. Trump. While both said they shared Justice Thomas’s concerns about the degree of power held by platforms to deplatform speakers such as Trump, Krishnan added that where she parts ways with Justice Thomas is the policy prescription he lands on, that of treating platforms as common carriers. 

“He’s advocating for laws that would basically prevent the platforms from excluding users from their platforms,” said Krishnan.  “And I’m not sure that’s the right sort of solution.”

Podcast host evelyn douek also wondered how current First Amendment doctrine copes with the reality of new, digital technologies. Noted Jaffer: “It’s not a surprise that the law we’ve got is mismatched with the challenges we’re facing. But the First Amendment is reinvented each generation. And we need to figure out what the First Amendment needs to look like, given the challenges that we’re confronting now.” 

Added Jaffer: “I’m optimistic about our collective ability to come up with a new set of rules that is faithful to the values the First Amendment was supposed to serve.”

Listen to the full podcast.