By Meghan Cox; Jake Smith, Wyatt Summer Associate 2018

 Knight First Amendment Institute at Columbia University v. Trump

Most Americans would agree that Donald Trump has no greater platform than Twitter. The self-proclaimed “Ernest Hemingway of 140 characters” understands that he can maximize his influence through the @realDonaldTrump account because tweeting provides the most direct interaction with constituents.  But unlike Hemingway, who is renowned for his “iceberg theory” of writing—in which a story’s deeper meaning is veiled under simple innuendos and symbolism—President Trump leaves little to a reader’s imagination.  His direct, and often abrasive, rhetoric has led many readers to reply in disagreement, and, in turn, Trump has developed a propensity for blocking these readers on Twitter.  Now that Trump is blocking people in his capacity as President, his so-called “haters and losers” may have recourse under the Constitution.

On May 23^rd, 2018, the United States District Court for the Southern District of New York held that President Trump violated the First Amendment by blocking users on Twitter because of their political viewpoints. Knight First Amendment Institute at Columbia University v. Trump, —F.Supp.3d—, 17 Civ. 5205 (NRB), 2018 WL 2327290, at *24 (S.D.N.Y. May 23, 2018).  The Knight First Amendment Institute and seven individual plaintiffs sued President Trump, Sarah Huckabee Sanders, Hope Hicks, and Dan Scavino for blocking them on Twitter after the individual plaintiffs replied to President Trump’s policy-based tweets with tweets criticizing said policies.  The plaintiffs alleged that the blocking constituted discrimination of their political viewpoints in violation of the First Amendment.  Judge Naomi Reice Buchwald agreed with respect to President Trump and Scavino, Trump’s Director of Social Media, noting that “the ‘interactive space’ where Twitter users may directly engage with the content of the President’s tweets . . . is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”  Notably, the forum classification—and the heightened First Amendment scrutiny that follows—applied solely to the interactive space where users could reply to and retweet the President’s tweets.  The @realDonaldTrump account’s tweets and timeline were considered government speech outside the bounds of the First Amendment’s reach.

In determining the interactive space was a designated public forum, the court first maintained that President Trump and Scavino had governmental control over the various aspects of the @realDonaldTrump account. Judge Buchwald supported this notion by citing President Trump’s intentions:  Trump described his account as “presidential” and used Twitter to carry out exclusively presidential activities like announcing the firings of Secretary of State Rex Tillerson and Secretary of Veteran Affairs David Shulkin.  Second, the court reasoned that the purpose, structure, and use of the interactive space was consistent with application of the forum doctrine.  Just as the government cannot inhibit speech in a public park or a university building, the President cannot inhibit the interactive space he intentionally creates on Twitter for purposes of interacting with constituents.  Accordingly, blocking the users, as opposed to using Twitter’s less restrictive “muting” option, constituted viewpoint discrimination.

The Knight court was not the first to analyze the forum framework with respect to social media, but it was the first to arrive at its holding.  In Morgan v. Bevin, one of the only other cases on point with regard to this specific issue, the Eastern District of Kentucky had substantially the same facts before it and reached the opposite conclusion. Morgan v. Bevin, 298 F.Supp.3d 1003 (E.D. Ky. 2018). There, several citizens sued Kentucky Governor Matt Bevin for blocking them on Twitter and banning them on Facebook.  The court rejected these claims outright, pronouncing Governor Bevin’s use of Twitter and Facebook constituted his own personal speech.  This classification rendered the forum analysis and corresponding strictures of the First Amendment inapplicable.  The court supported the holding by noting Bevin only intended to present an image, communicate policies and visions, and seek feedback narrowly-tailored to the topic that he initially presented in a singular post.  Notably, the court provided no legal distinction between Bevin’s Facebook and Twitter.

Taken together, the Knight and Morgan decisions create unclear implications for state and federal politicians who use social media to reach their constituents.  Their holdings are facially inconsistent—blocking either violates the First Amendment or does not; however, they can potentially be reconciled in certain respects.  Importantly, both opinions hinged their analysis on the politicians’ intentions.  An account designed and used for personal, rather than official, interactions might therefore avoid First Amendment repercussions altogether.  And while Morgan summarily concluded that social media is not a public forum, Knight methodically scrutinized each separate component of a Twitter account and its interactive capabilities before determining when social media interactions may amount to a public forum. Knight’s nuanced analysis seems appropriate for politicians who, like POTUS, utilize social media for official communications.  With the way each decision is written, it stands to reason that courts in other jurisdictions could apply Knight’s reasoning or even expand it to declare that Instagram’s or Facebook’s interactive forums are similarly subject to First Amendment scrutiny.

To the extent these decisions conflict with one another, they set the stage for a potential circuit split. The plaintiff in Morgan has the option to appeal to the Court of Appeals for the Sixth Circuit while, unsurprisingly, the Department of Justice has already announced its plans to appeal the Knight decision to the Second Circuit.  As Morgan and Knight work their way up the appeals process and other districts begin to weigh in on similar disputes, politicians should keep an eye on developing law in their jurisdictions.  Unless and until the Supreme Court decides to address the issue once and for all, it would be wise to hit the mute button instead of blocking social media users.