Donald Trump Cannot Block His Critics on Twitter, Appeals Court Reaffirms

The Second Circuit maintains that @realDonaldTrump is a public forum.

donald trump making a no gesture among twitter birds
Trump can't pick and choose who gets to read his Twitter account. Photo Illustration: Trent Joaquin; Source: Getty Images, Twitter
Headshot of Scott Nover

Key insight:

President Donald Trump gets a lot of hate on Twitter, but multiple courts have ruled that he cannot block his critics.

On Monday, the U.S. Court of Appeals for the Second Circuit denied Trump’s request for an en banc review of the court’s previous decision.

The Knight First Amendment Institute at Columbia University sued Trump in 2017 on behalf of seven individuals who had been blocked from viewing his Twitter account, @realDonaldTrump, for criticizing the president. In May 2018, the U.S. District Court found that the plaintiffs’ speech was protected under the First Amendment as Trump and then-director of social media Dan Scavino exerted “governmental control” over the account, which differs from the official @POTUS account that was passed down from Barack Obama’s tenure. 

After Trump appealed, a panel of three judges on the Second Circuit ruled unanimously in July to affirm the district court’s decision. 

“This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing,” Judge Barrington D. Parker wrote at the time. “In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.”

Monday’s decision to decline an en banc rehearing of the case, under which the full court would weigh in, affirmed the court’s stance that Trump’s Twitter account is a public forum from which he cannot exclude people. “Twitter is not just an official channel of communication for the president,” Parker said Monday. “It is his most important channel of communication.”

“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, in a statement. “This case should send a clear message to other public officials tempted to block critics from social media accounts used for official purposes.”

The Knight Institute’s executive director, Jameel Jaffer, called today’s decision “an important affirmation of core First Amendment principles as applied to new communications technology.”

White House press secretary Stephanie Grisham did not return a request for comment by the time of publication. 

While the president’s Twitter account today is full of tweets attacking the media, Democratic presidential hopeful Joe Biden, the Chinese government and anyone else who opposes the administration’s coronavirus response effort, the First Amendment precedent maintains that if you open up a public forum, you cannot restrict access for people based on their viewpoints. 

In short, we all have the right to read, tweet at and—if we wish—criticize the president on Twitter.

@ScottNover Scott Nover is a platforms reporter at Adweek, covering social media companies and their influence.