MANHATTAN (CN) — Ticking off a list of recently tweeted presidential proclamations, a panel of Second Circuit judges took turns on Tuesday skewering the argument that Donald Trump acted as a personal citizen in blocking Twitter followers.
“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.
Hall’s skepticism appeared contagious.
U.S. Circuit Judge Christopher Droney noted that Trump used his personal Twitter account recently to revoke sanctions against North Korea and disseminate a video of the U.S. formal recognition of the disputed Golan Heights as Israeli territory.
“Those aren’t official actions?” Droney asked, incredulously.
Oral arguments on Trump’s Twitter habits came to the Second Circuit after a federal judge ruled it unconstitutional last year for the president to block his critics on any of his accounts, including @realDonaldTrump.
“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,” U.S. District Judge Naomi Reice Buchwald wrote in May.
“The answer to both questions is no,” Buchwald’s 75-page opinion concluded.
Proceedings ended after 45 minutes without a ruling. Though typically camera-shy, the appellate court granted a rare exception Tuesday that allowed C-SPAN to broadcast the arguments.
Utrecht, whose LinkedIn profile states that she joined the Department of Justice the month of Trump’s election, largely focused her arguments on how to characterize Trump’s Twitter account and the president’s use of it.
“The @realDonaldTrump account is not a forum at all,” she insisted.
After Utrecht compared Trump’s personal account to that of any private individual, Parker interrupted: “You are here because he is not a private individual.”
Since the suit was filled two years ago by Columbia University’s Knight First Amendment Institute on behalf of seven academics, entertainers and political personalities blocked by Trump, several details about the president’s Twitter habits have emerged.
Knight First Amendment Institute’s director Jameel Jaffer quoted Trump’s admission that social media director Dan Scavino sometimes ghostwrites his tweets.
“This is not an account that the president uses on his own,” Jaffer noted.
Though the Department of Justice confirmed that point in a stipulation, Utrecht added that Trump blocks his critics himself.
Courts around the country have been exploring how to regulate the speech of public officials in a social-media age, and U.S. Circuit Judge Barrington Parker asked Jaffer about Trump’s ability to keep hate speech off his Twitter threads.
“Can the president block anti-Semitic or racist material as well?” Parker asked.
Jaffer paused before answering: “I think yes, your honor.”
The distinction, Jaffer said, would fall between viewpoint discrimination and the First Amendment’s carve-out for time, place and manner restrictions.