The court concluded its opinion with an observation that at this time in history, “wide-open, robust debate” is the best assurance of good government.

The Second Circuit U.S. Court of Appeals ruled last week that public officials’ social media pages can evolve from private to public forums, giving rise to First Amendment violations when they block critical comments from those forums. The case, Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, comes at a time of increasing use of social media by public officials to directly communicate with the public and their constituents. However, blocking individuals from what might have originally been a personal social media account can have potential legal ramifications.

In the Knight case, several Twitter users sued President Trump in the U.S. District Court for the Southern District of New York after the President blocked them from accessing @realDonaldTrump, the President’s regularly-used Twitter account. While @realDonaldTrump was established in 2009, prior to the President’s election, the President continues to use it to communicate and interact with the public about his administration. The President never denied that he blocked the Twitter users because of their critical tweets of him and his policies. Instead, he argued that the account was not a public forum that must give unlimited access to public discourse. After the district court ruled in favor of the blocked Twitter users, the President appealed the decision. In determining whether the President’s practice of blocking certain Twitter users from his account violated the First Amendment, the appellate court addressed the following important First Amendment questions:

First, is @realDonaldTrump a private account, which does not give rise to First Amendment issues, or is the account controlled by the government and thus a public forum? The President argued that the account was private because he had established and operated it long before he became president. The appellate court rejected this argument and concluded that the account was a government-controlled account. The factors that swayed the appellate court’s decision included:

• @realDonaldTrump was registered to “Donald J. Trump, 45th President of the United States of America, Washington, D.C."
• The President and White House Staff operated the @realDonaldTrump account in part with public resources.
• The White House social media director said the account was a channel through which “President Donald J. Trump ... [c]ommunicat[es] directly with you, the American people!”
• The President uses the “like,” “retweet,” “reply” and other functions of the account to understand, and to evaluate, the public’s reaction to what he says and does.

Second, was the @realDonaldTrump account a public forum? The appellate court concluded that the account was a public forum even though it is an online venue, not a traditional physical one like a street corner—substantiating that the First Amendment evolves to ensure that speakers remain protected. Accordingly, the Appellate Court explained, “[o]pening an instrumentality of communication ‘for indiscriminate use by the general public’ creates a public forum.” Because the @realDonaldTrump account was intentionally opened for public discussion and its interactive features were accessible to the public without limitation, the @realDonaldTrump feed became a limited public forum. In these forums, the First Amendment prohibits viewpoint discrimination by the government.

Third, did the President engage in unconstitutional viewpoint discrimination when he blocked certain Twitter users from his @realDonaldTrump account? The appellate court concluded, that he did. The President’s “replying” and “retweeting” qualify as speech, and the appellate court noted that a blocked account prevented some subscribers from not only viewing any of the President’s tweets, but also from replying to those tweets, retweeting them or liking them. Accordingly, by blocking users who criticized him, the President unconstitutionally excluded them from “speaking” in a public forum. The appellate court noted that although the President is not required to “listen” to the offensive tweets, once he opened the interactive features of his account to the public at large, he was not entitled to censor selected speakers because they expressed views with which he disagrees.

Finally, if the government controls the @realDonaldTrump account, does that mean all actions in connection with the account constitute government speech? The Free Speech Clause does not require viewpoint neutrality when it comes to governmentspeech. The appellate court concluded that although the President’s tweets could accurately be described as government speech, the retweets, replies and likes of other users in response to his tweets are not government speech, and therefore, choosing which speakers have access to retweeting or responding is viewpoint discrimination and is prohibited.

The court concluded its opinion with an observation that at this time in history, “wide-open, robust debate” is the best assurance of good government: “[W]e remind the litigants and the public that . . . the best response to disfavored speech on matters of public concern is more speech, not less.”

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