WASHINGTON (CN) — Appealing a Second Circuit decision barring President Donald Trump from blocking his critics on Twitter, the Justice Department on Thursday asked the Supreme Court to reverse the finding that government officials must make themselves open to contentious debate on social media.
“In holding that the president acts unconstitutionally in blocking respondents’ accounts from his personal Twitter account, the court of appeals misapplied several First Amendment doctrines,” according to a petition filed with the high court by acting U.S. Solicitor General Jeffrey Wall.
“Most fundamentally…the court erroneously considered the president’s own speech on his account (his tweets), rather than focusing on the president’s challenged restriction on respondents’ speech (his blocking of their accounts),” the petition states. “That error led the court of appeals to the misguided conclusion that the United States government, rather than Donald J. Trump, had interfered with respondents’ preferred use of Twitter.” (Parentheses in original).
Trump has feuded in court for years with Twitter users like Megan Ackerman, a digital specialist with the American Federation of Teachers, and Ellen Brodsky, a freelance writer and researcher. Both were blocked by Trump’s account after tweeting critical messages about his presidency.
The pair along with five other blocked users – represented by the Columbia University’s Knight First Amendment Institute – prevailed in the Second Circuit last year after arguing that Trump’s Twitter page is government-run and therefore not insulated from public criticism.
The full appeals court refused in March to rehear the case. Meanwhile, another lawsuit was filed last month by the Knight First Amendment Institute claiming that while the president unblocked the seven plaintiffs in the original case, he has failed to unblock a number of other individuals.
Wall wrote in Thursday’s petition to the Supreme Court that Trump’s virtual exile of tweeters does not constitute an action by the federal government. Citing the 1982 high court decision in Lugar v. Edmondson Oil, the solicitor general said two requirements need to be met for someone to be considered acting on behalf of the government.
First, a constitutional depravation by the state, caused by a rule imposed by that government, would constitute a state action. The person restricting that constitutional right also needs to be state actor, Wall wrote.
“Here, those requirements are not satisfied: the president’s use of his own property (his personal Twitter account) in a manner available to all private citizens (applying Twitter’s blocking function) does not constitute state action to which the First Amendment applies,” Wall wrote. (Parentheses in original).
Wall argued the Second Circuit was wrong to conclude Trump’s Twitter account, “even though the president uses his account to speak to the public,” is a government-created public forum. Trump created the account in 2009 before he was elected, the petition states, noting there are separate accounts for the White House and president used for official capacities. Trump will retain his account after serving as president, meaning the blockades are not extensions of the federal government, Wall wrote.
“After all, he will still be able to block the individual respondents’ accounts from his personal account after he leaves office — which will have precisely the same effect on their ability to interact with all the tweets on his account,” the petition states.
The solicitor general further argued a public official is not always acting officially. For example, “a congressman who exercises a privilege under D.C. law to use force to repel a trespasser placing yard signs on his front lawn is still not acting as a government official,” Wall wrote, and wouldn’t be subjected to constitutional challenges for his actions.
“To be sure, a Twitter account is a different type of property than a Congressman’s front lawn,” he wrote. “But the fact that Twitter has designed such accounts to be open for comment by others, unless blocked by the account owner, does not change the state-action analysis.”
In a statement Thursday, Jameel Jaffer – the executive director of the Knight First Amendment Institute who argued the case before the Second Circuit – said the justices should reject the government’s appeal and leave the appeals court’s decision intact. A response brief is due to the court by Sept. 21.
“This case stands for a principal that is fundamental to our democracy and basically synonymous with the First Amendment: government officials can’t exclude people from public forums simply because they disagree with their political views,” Jaffer said.