Second Circuit Pries Open Trump Twitter to Public

President Donald Trump’s Twitter feed is photographed on an Apple iPad in New York on June 27, 2019. (AP Photo/J. David Ake)

MANHATTAN (CN) – Emphatically rejecting the argument that the president’s Twitter account is private, the Second Circuit ruled Tuesday that it is unconstitutional for Donald Trump to block users who criticize him.

“The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate,” U.S. Circuit Judge Barrington Parker wrote for a three-judge panel. “This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen.  

“This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing,” the ruling continues. “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.”

Justice Department spokeswoman Kelly Laco expressed disappointment with the ruling and said the government is “exploring possible next steps.” 

“As we argued, President Trump’s decision to block users from his personal Twitter account does not violate the First Amendment,” she added.

The 29-page opinion affirms a May 2018 ruling where U.S. District Judge Naomi Reice Buchwald sided with seven academics, entertainers and political personalities blocked by President Trump.

Represented by the Knight First Amendment Institute at Columbia University, the challengers argued that a public official’s personal social media account is not a Constitution-free zone, if put to government use.

The Second Circuit was emphatic that Trump’s Twitter account is not private: “We conclude that the evidence of the official nature of the Account is overwhelming.”  

“We also conclude that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with,” Parker added.

The Knight First Amendment Institute’s executive director Jameel Jaffer predicted that the ruling would “help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”

“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” said Jaffer, who argued the Second Circuit case earlier this year. “This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism.”

Today’s ruling was not unexpected: The three-judge panel took turns roasting the Department of Justice’s position that Trump’s personal Twitter account is private during oral arguments in March.

“If you are arguing that, it’s curious to me that the Department of Justice is here representing essentially a private entity,” U.S. Circuit Judge Peter Hall told the agency’s senior attorney Jennifer Utrecht at the time.

U.S. Circuit Judge Christopher Droney, the final member of the panel, noted back then that Trump used his personal Twitter account recently to revoke sanctions against North Korea and disseminate a video where the U.S. formally recognized the disputed Golan Heights as Israeli territory. More examples abound in today’s opinion, which cites Trump’s nomination of Christopher Wray as FBI director, his ban on transgender troops serving in the military, and the replacement of his former chief of staff Reince Priebus with General John Kelly — all announced on Twitter.

The National Archives has concluded that each Trump tweet constitutes an official record.

The Justice Department once stipulated that Trump’s social media director Dan Scavino sometimes ghostwrites the president’s tweets.

As a private rather than government entity, Twitter has the right to enforce its terms of service without the same constitutional implications, and the social media giant has faced down criticism for allowing Trump to post tweets that would seem to violate its rules against abusive behavior. The company unveiled a policy last month that would mark such posts with the following disclaimer: “The Twitter Rules about abusive behavior apply to this Tweet. However, Twitter has determined that it may be in the public’s interest for the Tweet to remain available.”

Twitter announced a new policy today banning “dehumanizing” posts toward religious groups, such as likening those groups to subhumans or vermin.

When his administration rolled out a family-separation policy at the U.S.-Mexican border, Trump compared undocumented immigrants to vermin who will “pour into and infest our country.” 

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