The Second US Circuit Court of Appeals has upheld a 2018 ruling that public officials cannot block people on Twitter in response to their political views. The ruling focuses on President Trump’s blocking of certain users on Twitter but also makes it unconstitutional for all public officials to block people in response to their political views.
The original May 2018 ruling was made when the US District Court for the Southern District of New York ruled in favor of the Knight First Amendment Institute in a suit which argued that because the @realDonaldTrump Twitter account is a public forum under the First Amendment, blocking users from this account is a violation of their First Amendment rights.
In an opinion on this original ruling, US District Court Judge Naomi Reice Buchwald wrote:
“This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.”
The US government appealed this original ruling in August 2018 and argued that:
“The constitutional right of a private individual to express his or her views in a public forum comes into play only when the property in question is owned or controlled by the government and the individual’s exclusion from that property is the product of state action. But here, the @realDonaldTrump account belongs to Donald Trump in his personal capacity and is subject to his personal control, not the control of the government. And when he exercises the power enjoyed by all Twitter users to block other users from their own accounts, he is not using any authority belonging to or conferred on him by the federal government.”
In this latest July 2019 ruling, the Second US Circuit Court of Appeals rejected the US government’s appeal and concluded that:
“The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”
While the ruling is focused on the @realDonaldTrump account, the wording applies to all public officials. This means that it’s not just unconstitutional for Trump to block users on Twitter but it’s also unconstitutional for any public official to engage in this behavior. As a result, any public official who blocks Twitter users could now face lawsuits from plaintiffs who allege that their First Amendment rights are being violated.
Two prominent public officials who are likely to be impacted by this ruling are Congresswoman Alexandria Ocasio-Cortez and Congresswoman Ilhan Omar with multiple Twitter users claiming that they have been blocked by these public officials.
The day has come! pic.twitter.com/IYU57NmmHK
This is the tweet which made her block me. And this is her tweet I was responding to. The truth stings. pic.twitter.com/jqjeeLoR4B
State Rep. Ilhan Omar blocked me on Twitter a few hours after taking a jab @ reporter @mukhtaryare. @IlhanMN is Omar’s official handle, which she uses 2 communicate w/ the public. Elected officials who suppress information from the public & journalists should be held accountable pic.twitter.com/X3tjljww6D
Omar has even admitted that she reserves the right to block if she chooses to – a statement that contradicts this recent ruling of the Second US Circuit Court of Appeals.
Same here, my personal page and I reserve the right to block if I chose to.
Ocasio-Cortez is already starting to see the effects of this ruling with former Democratic New York Assemblyman Dov Hikin saying that he’s preparing to sue her for blocking users on Twitter based on their personal viewpoints and YouTuber Joey Saladino, who is running for Congress, filing a lawsuit because he was blocked by Ocasio-Cortez on Twitter.
I have officially filed my lawsuit against AOC for blocking me on twitter.
Trump is not allowed to block people, will the standards apply equally?
Stay tuned to find out! pic.twitter.com/0RmHI7x9Qc
Oklahoma attorney Gabriel Malor believes this is a “garbage decision” which will come back to bite and impair the use of Twitter for all public entities. He adds that the ruling suggests that even when public officials leave office, they won’t be able to block people on Twitter.
This is a garbage decision. Twitter lacks the features traditionally associated with public forums, which is why this panel and the district court below strains to discover this "interactive space" theory.
This is one of those decisions that is going to come back to bite. People hated Trump enough that they just impaired Twitter usage by all public officials and public entities.
But, boy, they sure showed Trump!
And while one would hope former public officials could regain a private space on Twitter once out of office, but that doesn't follow from the decision's reasoning either.
The public character of the "interactive space" exists independent of the public official.
The decision could still be appealed to the Supreme Court but as it stands, it opens any public official up to lawsuits similar to those being filed against Ocasio-Cortez.