Last week, the U.S. Court of Appeals for the Second Circuit denied the Trump administration’s request for full court review of last year’s decision holding that the president violates the First Amendment when he blocks critics from his @realDonaldTrump Twitter account. The denial leaves the original panel’s decision in place, with important implications for the public’s right to access and interact with public officials’ social media accounts. The Second Circuit’s action is especially welcome now, at a moment when many Americans are especially reliant on public officials’ social media accounts—and on other official social media accounts—for information about the COVID-19 pandemic and about the government’s response to it.
In asking the court to rehear the case, the Trump administration asserted (as it did before the panel, and the court below) that the president operates @realDonaldTrump in his personal rather than official capacity, and that in any event he acts in his personal capacity when he blocks other users from the account, because Twitter has made the blocking feature available to all users, not just to the president. The government also argued that the president’s Twitter account could not be a “public forum” under the First Amendment because Twitter is privately owned.
The Second Circuit rightly rejected these arguments. As Judge Barrington Parker reiterated in a statement accompanying the court’s denial of the government’s request for rehearing, the president uses the @realDonaldTrump account “to make official statements on a wide variety of subjects, many of great national importance”—in other words, the president uses the account as an extension of his office. That Twitter has extended the blocking feature to all users is not relevant, the court concluded. What matters is that, in blocking people from his account, the president is blocking individuals from an account used for official purposes. The court also found it irrelevant that Twitter is privately owned. For First Amendment purposes, the court reasoned, the important facts are that the president controls the relevant space (the interactive space associated with his account), that he has opened that space for expression by the public at large, and that he excluded the plaintiffs from the space because they criticized him.
This week’s decision focuses on the president’s Twitter account, but it has broader implications. Public officials all around the country are using social media as their main means of communicating with their constituents and the public. As news reports have described, a troubling number of local and state officials have followed the president’s lead by blocking critics from their official social media accounts. This practice distorts public discourse, and democratic decision making, in multiple ways: It impedes the blocked users from participating in public debate; it deprives other users of the opportunity to hear the comments that the blocked users would have made; it insulates public officials from criticism; and it turns dynamic forums into echo chambers. The Second Circuit properly makes clear that the First Amendment does not permit public officials to distort public debate in these ways.
The decision is particularly welcome now, at a time when many of us are especially reliant on official social media accounts for information about the COVID-19 pandemic. Trump’s own account is often a font of disinformation, making the public’s right to respond in that forum even more important. But other public officials’ social media accounts—and government agencies’ social media accounts—have become indispensable sources of vital and time-sensitive information about public health. A person’s access to the social media accounts of New York Governor Andrew Cuomo, California Governor Gavin Newsom, or the Centers for Disease Control and Prevention, should not turn on her political views—and yet the result of the Trump administration’s arguments would have been to allow viewpoint discrimination by all of these. (After all, all of their social-media accounts are located on privately owned platforms.) The Electronic Frontier Foundation has documented the ways in which state and local agencies have used their social media accounts to disseminate life-saving information to the public after natural disasters, including earthquakes, wildfires, and hurricanes. The Second Circuit was right to hold that the First Amendment protects the public’s right to receive the crucial public health and safety updates posted on these accounts regardless of the political views they may have expressed there or elsewhere. Unfortunately, this protection is more important today than ever before.
Carrie DeCell is a staff attorney at the Knight First Amendment Institute.
Meenakshi Krishnan is a legal fellow at the Knight Institute.