Washington • President Donald Trump cannot block his critics from the Twitter feed he regularly uses to communicate with the public, a federal appeals court said Tuesday, in a case with implications for how elected officials nationwide interact with constituents on social media.
Trump’s Twitter habits through his @realDonaldTrump account were central to the case brought by seven people — including a former Utahn — blocked after posting disapproving comments in 2017.
The decision from the New York-based appeals court upholds an earlier ruling that Trump violated the First Amendment when he blocked individual users critical of the president or his policies.
“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,” wrote Judge Barrington Parker in the unanimous decision by the U.S. Court of Appeals for the 2nd Circuit.
"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."
The First Amendment prevents the government from blocking or excluding views it disagrees with in what is known as “viewpoint discrimination.” The Supreme Court has not directly addressed how the law applies to expanding digital spaces for public debate, and the case involving the president’s account — with millions of followers — was a high-profile legal test.
One of the Twitter users named in the case is Nick Jack Pappas, a writer and comedian who graduated from the University of Utah.
Pappas, who wrote for the Tribune from 2011 to 2014 and now lives in New York City, was blocked by Trump after a court overturned Trump’s Muslim travel ban. When Trump tweeted that the courts need to protect the people, Pappas tweeted back to @realDonaldTrump: “Trump is right. The government should protect the people. That’s why the courts are protecting us from him.”
Pappas was later approached by the Knight Institute at Columbia University and asked to join the suit. He said he believes the institute selected him and the other plaintiffs because they come from diverse backgrounds and had “reasonable critiques" of the president’s tweets.
“Compared to the mountain of worries about this administration, I know this is only a pebble,” said Pappas in an email to The Tribune on Tuesday. “But pebbles roll and grow. They start avalanches. By silencing voices of dissent, he’s creating a precedent to silence more. I’m glad the court decided today our voices should be heard.”
The plaintiffs were unblocked by Trump following the first court decision, but Pappas says he expects the suit to end up in the Supreme Court “because Trump is unwilling to lose.” He said he is not sure what outcome could be expected in the highest court, but said Justice John Roberts has a track record of protecting the First Amendment.
“I mainly just want to meet RBG," Pappas wrote, referring to Justice Ruth Bader Ginsburg.
Elected officials throughout the country are also learning to navigate how those principles apply to their social media accounts. The ruling from the New York-based appeals court echoed an earlier decision from the Richmond-based appeals court involving the Facebook page of a Virginia politician.
In the president’s case, attorneys from the Knight Institute at Columbia University, representing the blocked users, said Trump’s Twitter account is an extension of the presidency that is routinely used by Trump to announce government nominations, defend his polices and promote his legislative agenda. The comment section is no different from a traditional town hall meeting, they said, and citizens must be allowed to respond directly to government officials and engage in public policy debates.
"Public officials' social media accounts are now among the most significant forums for discussion of government policy," Knight Institute executive director Jameel Jaffer said in a statement after the ruling.
"This decision will ensure that people aren't excluded from these forums simply because of their viewpoints. It will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy."
Justice Department lawyers defending the president said in court that @realDonaldTrump is a personal account on a privately-owned digital platform and that Trump may block followers he “does not wish to hear.” The president’s lawyers drew parallels to the physical properties Trump and other presidents owned before taking office. A president’s residence — or social media account — does not become government property when the president conducts government business there.
The president had unblocked the seven people behind the initial lawsuit while the case was pending on appeal.
A Justice Department spokesperson did not immediately respond to a request for comment on the ruling.
The court’s decision on Tuesday addressed only the interactive spaces on Twitter for replies and comments, and applies to accounts used to conduct public business. The 29-page ruling, joined by Judges Peter Hall and Christopher Droney, did not decide whether elected officials violate the Constitution when they block users from "wholly private accounts. The judges also did not consider whether private social media companies are bound by the First Amendment when “policing” their platforms.
Tribune reporter Sara Tabin contributed to this article