Fighting for the First Amendment

Rebecca Pilar Buckwalter-Poza
March 07, 2018

Rebecca Pilar Buckwalter-Poza is a regular contributor to Pacific Standard on law and politics and is judicial affairs editor at Daily Kos. She is a plaintiff in Knight First Amendment Institute at Columbia University, et al. v. Trump, et al.

I began following @realDonaldTrump after the 2016 election, using my “verified” account — one deemed by Twitter to be of public interest. It was clear that Donald Trump was using his Twitter feed as a public forum, a venue for announcements to and communication with the public. As a legal columnist and a policy fellow focused on civil rights, I was required to follow him in order to perform the duties of my job. Psychologically, it gave me a sense of control to know what the president-elect, later the president, was saying in real time, unfiltered by the interpretations of others. Of course, I couldn’t help commenting at times. That’s what Twitter is for.

In early June 2017, Trump blocked me on Twitter. The tweet that seems to have gotten me blocked wasn’t a particularly aggressive one. It certainly wasn’t hateful. The president had boasted about winning the White House; I quoted his tweet and added, “To be fair you didn’t win the WH: Russia won it for you.” After Trump blocked me, a friend directed me to the Knight Institute’s lawsuit against Trump. If I had to sum it up, our lawsuit against Donald Trump is about how democracy is supposed to work; it is an effort to protect our First Amendment rights.

It is a privilege to be part of the Knight Institute’s lawsuit. There are no rights more precious than those protected by the First Amendment. Here, the obvious right in question is that of free expression in a public forum. To dive into legalese briefly: Unless the government can satisfy judicial “strict scrutiny,” government can impose limits only on the time, place, and manner of speech in public forums. “Viewpoint discrimination” —  discrimination based on a speaker’s view — is flatly unacceptable under First Amendment doctrine.

It’s never far from my mind that I am a plaintiff against the president of the United States.

Trump’s legal team conceded that my fellow plaintiffs and I had been blocked for being critical of Trump tweets. In other words, they’re not even claiming that there was a good reason to block us. That admission reaffirmed my sense of the importance of this case; freedom of expression and the freedom to dissent are dear to me because of my sense of how this country functions at its best, but also because I’m the granddaughter of a man who fled fascism in Spain and a woman who grew up in South America in an era when authoritarianism dominated the region.

Their flight from authoritarianism of different kinds as immigrants to the United States makes participating in this lawsuit all the more meaningful for me. The freedoms that my grandparents secured for me and the curiosity they fostered led me to law and journalism — more than 80 years after my grandfather took up a pen in protest in Spain under a pseudonym. Those freedoms shaped how I was raised: with confidence in my right to seek truth and challenge authority and without fear of retaliation.

Within a week of our filing the suit, I received my first hate call; it came to my cellphone. In the legal sense, the caller stopped just short of threatening me — he had clearly been reading up — but the call was still frightening. “You're a witch, Rebecca,” the caller hissed. “You sued the president, and you're a witch.”

Democracy hinges on active participation, and that includes dissent.

Despite intimidating backlash, I’ve never felt any hesitation or regret about being a plaintiff in this suit. I’ve also not experienced any lessening of the sense of the urgency or importance of the rights at stake. It’s never far from my mind that I am a plaintiff against the president of the United States. That ever-present sensation has become especially sharp since the president’s legal team conceded that blocking me was the action not of an aide but of President Trump himself.

A president who blocks constituents at will is the president of only some of the people. The boilerplate rejection language I get when I end up on President Trump’s Twitter page feels personal, especially knowing (as I now do) that the president himself was the one who clicked on the “block” button. “You are blocked from following @realDonaldTrump and viewing @realDonaldTrump's Tweets” translates into active rejection of me as a citizen. That makes it impossible for me to respond in real time to the president’s tweets, which makes it harder for me to do part of my job. But the rejection is more than personal or professional: Democracy hinges on active participation, and that includes dissent; only with meaningful engagement among people of differing views is the result a government that represents us all.

I realize that there are political dimensions to this suit, especially for the audience President Trump has sometimes prompted, with his tweets, to doubt the impartiality of the American court system. But it is strange for me to think of this suit as a matter of two parties litigating in federal court to win or lose. To me, this isn’t about politics, and it isn’t about winning. It’s about upholding the First Amendment.