MANHATTAN (CN) – A federal judge was critical Thursday about why President Donald Trump did not avail of another Twitter feature to foreclose constitutional issues that arose when he blocked critics.
Seven users forbidden from the commander-in-chief’s feed brought the underlying suit in New York last year, claiming that their exclusion from being able to follow @realDonaldTrump burdens their First Amendment rights.
At a hearing on the challenge that went for roughly two hours this morning, U.S. District Judge Naomi Reice Buchwald appeared frustrated that the government has let the case get this far.
“Fine then, isn’t the answer that he just mutes the person he personally finds offensive?” she asked.
While blocking an account on Twitter prevents users from seeing tweets, muting allows account holders to tune out their critic.
“Why are we here?” Buchwald asked the government later.
With three of her seven clients in court for the hearing, Katherine Fallow with the Columbia University-affiliated Knight First Amendment Institute agreed that muting could be an acceptable compromise.
“I don’t think it’s a perfect solution, but it is a far less restrictive,” Fallow said.
Whether Trump will come to the settlement table, however, remains uncertain. Department of Justice attorney Michael Baer told the judge that president has the “associational freedom” to block whomever he wants.
Buchwald replied that this freedom comes with a legal gamble.
"With every case, there is always a risk that you can lose, and if there is a settlement that could better serve the interests of the respective parties, it is often the better way to go,” she said.
Though Buchwald made clear that she has not yet made a decision, the tenor of her questions made clear the government stood a considerable chance of defeat.
Baer replied: “We can always take that suggestion back for discussion.”
This morning’s hearing posed a key question for free speech in the social media age: Is a government official’s personal Twitter account a public forum governed by the First Amendment?
For Fallow, representing the blocked citizens, the answer was a clear yes. She noted that Trump announced his proposed transgender military ban on Twitter, and the Justice Department itself considers the @realDonaldTrump account as a channel for official statements.
Buchwald appeared unswayed by Baer’s contention that the account this Twitter feed was a personal account created by a private citizen years before he became president.
"Is it constitutionally acceptable to block a citizen... from the @POTUS or @WhiteHouse [Twitter] account?" she asked.
"Probably not," Baer conceded.
Even if she did not order the president to unblock his critics, Buchwald said, she can instruct him on what the constitutional law of Twitter is.
“When we take our jobs, we swear to uphold the Constitution and the laws of the United States,” she noted.
Viewed in that light, Buchwald added, blocking a Twitter critic is no more acceptable than cutting of a citizen’s microphone at a town hall.
“Once it is a public forum, you can't shut somebody up because you don't like what they're saying," she said.
At a press conference outside the courtroom, three of the plaintiffs told reporters that they liked what they heard during the proceedings.
“I think it went great,” comic Nicholas Pappas said. “I think our lawyers did an amazing job. I think a valuable point that the judge made on this is that we’re not the only ones harmed by this. Everyone who has the ability to hear our voices are harmed.”
Asked about the judge’s proposed compromise, Pappas said that would be a “great solution for me.”
“I never thought that Trump would be reading my tweets,” Pappas said. “It was never my point. I wanted other people to be reading my tweets, other citizens to be reading my tweets. So as long as they hear from them, I would be very fine with him never hearing what I say.”
University of Maryland sociology professor Philip Cohen said the government’s reluctance to cede the middle ground proves his case.
“Honestly, I don’t know if muting is really the solution, but if all they really care about, as they say, is that he just doesn’t want to hear from us, then he would mute,” Cohen said. “But obviously he wants to suppress our speech.”
For former political consultant Rebecca Buckwalter, who is now a journalist, her case was also a matter of freedom of the press.
“It makes it a lot harder to engage with other people who are covering the president,” Buckwalter said. “It’s really not the same thing at all and the work arounds are all extremely tedious.”
The other plaintiffs, who were not in court, are Grammy-nominated songwriter Holly Figueroa, Vanderbilt University Medical Center surgeon Eugene Gu, former Guantanamo Bay prison guard Brandon Neely, and retired professional cyclist Joseph Papp.
If no deal is reached, Buchwald will issue a decision on summary judgment. She has not indicated when she would rule.
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