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Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided.  I’m Alan Mygatt-Tauber.

This week we’re discussing Knight First Amendment Institute v. Trump, a Southern District of New York case challenging the President’s decision to block certain people on Twitter.

The Knight First Amendment Institute and several individual plaintiffs filed suit in the Southern District of New York, arguing that the President’s decision to block them on Twitter violated their First Amendment rights.  The facts in this case were based on mutually agreed upon stipulations, so the Court was able to focus purely on the legal questions at hand.

The Court began with a brief examination of what the Twitter platform is.  It noted that a defining feature of Twitter is a user’s ability to repost and respond to others’ messages and to interact with other Twitter users in relation to those messages.

The Court also noted that Twitter offers users two means of limiting interaction with others: blocking and muting.  Blocking prevents another user from interacting with the blocking account.  A user signed into a blocked account cannot see or reply to the blocking user’s tweets, view the blocking user’s list of followers or followed accounts, or use the Twitter platform to search for the blocking user’s tweets.

However, blocking does not prevent the blocked user from all interaction with the blocking user.  The blocked user can still mention the blocking user, tweets mentioning the blocking user will be visible to anyone who can view the blocked user’s tweets and replies.  A blocked user can also reply to users who have replied to the blocking user’s tweets, although they cannot see the original tweet that led to the reply.  Furthermore, even if blocked, a user can log out and see all the content on the blocking user’s account which is accessible by anyone without a Twitter account.

Muting, on the other hand, allows a user to remove an account’s tweets from his or her timeline without unfollowing or blocking that account.  Muted accounts will not know they have been muted.  They can still see and interact with the muting user’s tweets – but the muting user will not see those replies or other interactions.

The Court then turned to the nature of the @realDonaldTrump account, which was at the center of this lawsuit.  The Court noted that the account was created in 2009 and that before his inauguration, President Trump used the account to tweet about a variety of topics, including popular culture and politics.  Since his inauguration, President Trump has used the account as a channel for communicating with the public about his administration, although he has also continued to use it to communicate about other issues.

The biography on the @realDonaldTrump Twitter page lists the account as registered to Donald J. Trump, 45th President of the United States of America, Washington, D.C.  It is generally accessible to the public at large without regard to political affiliation or any other limiting criteria.

Since his inauguration, the account has been operated with the assistance of Daniel Scavino, another named defendant, the White House Social Media Director and Assistant to the President.  The Court also noted that the President uses the account to defend his policies and his administration’s agenda, to announce official decisions and to engage with foreign political leaders.  He has sometimes used it to announce matters related to official government business before those matters are announced to the public through other official channels.

Furthermore, the Court noted that the National Archives and Records Administration has determined that tweets sent from the @realDonaldTrump account must be preserved under the Presidential Records Act.  Finally, Mr. Scavino himself has stated that the account is how the President communicates directly with the American people.

The individual plaintiffs were all Twitter users who posted comments critical of President Trump and his policies and were blocked shortly thereafter.  The Defendants did not contest that they were blocked because they posted tweets critical of the President or his policies.  The Knight Institute is a nonprofit whose purpose is to defend and strengthen the freedoms of speech and the press in the digital age.  It has not been blocked by President Trump, but desires to read comments that would have been posted by the individual plaintiffs had they not been blocked.  Prior to filing suit, the Knight Institute followed one of the individual plaintiffs.

The Court began its legal analysis by analyzing the standing of the individual plaintiffs against each of the named defendants.  The Court had no trouble deciding that each of the plaintiffs, including the Knight Institute, had standing to sue both the President and Mr. Scavino.  However, it found no standing in relation to Press Secretary Sarah Huckabee Sanders, who does not deal with the @realDonaldTrump Twitter account, and with former White House Communications Director Hope Hicks, who was sued in her official capacity and has since resigned.  Therefore, it dismissed all claims against Sanders and Hicks.

While the Court noted that Scavino did not play any role in blocking the plaintiffs, he had the ability to unblock them, and since they were seeking prospective relief for an ongoing constitutional violation, that was enough to make him susceptible to suit here.

Having satisfied itself that the plaintiffs had standing, the Court then turned to the underlying First Amendment claims.  As the Court recognized, the primary point of dispute between the parties is whether a public official’s blocking of individual plaintiffs on Twitter implicates a forum for First Amendment purposes.

The first question the Court had to answer was whether the speech in which the plaintiffs which to engage is speech protected by the First Amendment.  After determining if such speech is protected, the Court then must satisfy itself that the putative forum is susceptible to forum analysis at all, identifying with particularity the putative forum at issue.  If so, the Court then must determine which type of forum – a traditional public forum, a designated public forum, or non-public forum – it is dealing with.  Finally, if a forum is found, the Court will determine the extent to which the Government has controlled access and whether that is consistent with the class of forum identified.

The Court quickly answered the first question – because the plaintiffs seek to engage in political speech on matters of public concern, they are within the core of First Amendment protection.  Therefore, they are engaging in protected speech.

The Court then addressed whether the forum doctrine could appropriately be applied to Twitter.  It began its analysis by noting that, as a threshold matter, for a space to be susceptible to forum analysis, it must be controlled by the Government, and application of the doctrine must be consistent with the purpose, structure, and intended use of the space. In determining whether these requirements are satisfied, the Supreme Court has instructed that courts should identify the forum by focusing on the access sought by the speaker.

The Court determined that the government control prong of the analysis was met because the President and Scavino exercise control over various aspects of the account – they control the content being sent and they can prevent, through blocking, other users from accessing the timeline and from participating in the interactive space associated with the tweets sent from the account.  While they cannot control the content of a retweet or reply, they can control who has the power to retweet or reply in the first instance.

The control exercised by Scavino and the President is governmental.  The account is presented as being registered to Donald J. Trump, 45th President of the United States in Washington, D.C.  The tweets sent by the account have been determined to be official records and it has been used in the course of both the appointment and removal of officers, including cabinet secretaries, as well as the conduct of foreign policy, all of which are squarely executive functions.  The President presents the account as being a presidential, as opposed to a personal account, and he uses it to take actions that can only be taken by the President as President.

The President’s lawyers argued that “blocking” is not state action, and the Court should examine it in that context.  But the Court noted that the requirement for state action is not typically analyzed separately from the government control prong when conducting a forum analysis.  Nevertheless, the actions taken here are done so by public officials – the President, and Mr. Scavino in his official capacity.

The fact that the President established the account in 2009 is also irrelevant.  That a forum may once have been private does not detract from the public nature at the current time.  Indeed, the whole concept of a “designated” public forum is that a previously closed forum has been transformed into a public one.  Here, the present use by the President and Scavino weighs far more heavily that the origin of the account.  However, the Court noted, the comment threads spawned by President Trump’s tweets are not susceptible to forum analysis, because neither the President nor Scavino have control over the comment thread beyond determining who can participate in it via blocking.

The Court then analyzed whether application of the forum analysis is consistent with the purpose, structure, and intended use of the aspects of the account that the Court found met the government-control test – the tweets themselves, the timeline comprised of the tweets, and the interactive space of each tweet.

One exception to forum analysis is government speech – the Government is free to articulate the message it wishes and thus government speech is not susceptible to forum analysis.  Thus, the Court found, the content of the President’s tweets could not be subjected to the forum analysis.  For the same reason, the timeline, which displays all the tweets generated by the account, is also not susceptible to this analysis. 

However, the interactive space surrounding each tweet cannot be said to be government speech.  At minimum, replies to tweets are most readily associated with the replying user, rather than the person being replied to.  Furthermore, each reply tweet is associated with the account of the replying user.  And there is no limits to the number of people who can reply to a tweet.  Thus, the interactive space of a tweet can accommodate an unlimited number of replies and retweets.  Finally, the essential function of a given tweet’s interactive space is to allow private speakers to engage with the content of the tweet.  All of these facts support the application of the forum analysis.

Having determined that the interactive space around an individual tweet is a government-controlled forum, the Court then turned to classifying the type of forum at issue.  It rejected the idea that Twitter creates a traditional public forum.  The Court has held that such fora are limited to the public streets and squares – places with a long history of being open to all speakers.  While Twitter may resemble these areas in some ways, it lacks the history of such fora.

Therefore, the Court considered the interactive spaces surrounding tweets to be a designated public forum.  The account is generally accessible to the public at large without regard to political affiliation or other limiting criteria.  Any member of the public can view the tweets and anyone with a Twitter account can follow it – unless they have been blocked.  Similarly, anyone with a Twitter account who has not been blocked may participate in the interactive space by replying to or retweeting the President’s tweets.

The Court then examined whether the blocking of the plaintiffs is permissible in a designated public forum.  Such restrictions are permissible only if they are narrowly drawn to achieve a compelling state interest.  Here, however, the plaintiffs were indisputably blocked because of viewpoint discrimination – namely, they were critical of the President and his policies.  Viewpoint discrimination is presumed impermissible when directed against speech otherwise within a forum’s limitations.  Therefore, the continued exclusion of the individual plaintiffs based on viewpoint is impermissible under the First Amendment.

The Court concluded its First Amendment analysis by responding to the Government’s claims that the decision to block these plaintiffs was consistent with the President’s First Amendment rights.  The Court acknowledged that public officials do not surrender their rights when they assume office.  Furthermore, it noted that nothing in the First Amendment’s rights to speak and petition the Government for a redress of grievances guarantees the right to be heard.  Simply put, there is no requirement for the government to actually listen when people speak and being ignored does not implicate the First Amendment.  However, the Government may not go beyond amplifying the voice of some and not engaging with others by restricting the right of the individual to speak without offending the First Amendment.

The Court thus returned to the two methods of dealing with objectionable speakers on Twitter – blocking and muting.  Because muting is an option which prevents the President from seeing objectionable content, without hampering the ability of the individual plaintiffs to interact with the President’s tweets, it is the constitutionally acceptable method to use.

The Court concluded with a brief discussion of the relief sought by the plaintiffs.  They requested both a declaratory judgment that blocking them was unconstitutional and an injunction requiring the President to unblock them.  However, injunctions against the President can raise separation of powers concerns.  The Court noted that it could avoid this problem by issuing an injunction against Mr. Scavino, a subordinate officer, instructing him to unblock the plaintiffs.  It determined that it did not need to go even this far.  Instead, relying on the presumption that government officials will obey the authoritative interpretation of a constitutional provision, the Court issued a declaratory judgment that the First Amendment prohibited blocking the plaintiffs from the President’s @realDonaldTrump account.

It seems to me the Court got this decision exactly right.  It is clear that not every aspect of President Trump’s Twitter account meets the definition of a public forum – but it is just as clear that certain aspects of the account DO constitute a designated public forum.  It may strike some people as odd that while the First Amendment guarantees a right to petition the Government, there is no corresponding right to have the Government listen.  But in this, the petition clause mirrors the speech and press clauses.  You have a right to speak and a right to print your thoughts.  But no one is under any obligation to listen to or read what you’ve said or written.  Unless we are prepared to say that public officials give up their own First Amendment rights when they take office, this is the only sensible result.

At the same time, since the audience for replies to tweets is not just the account holder, but also everyone who follows them, it only makes sense to say that a public official cannot prevent anyone from commenting on their tweets, particularly when commenting on matters of public concern.

Perhaps the most interesting take away from this case is the holding that the President’s @realDonaldTrump Twitter account has been officially recognized as government, and thus official, speech.  Given the claims in other cases, most notably the Travel Ban, currently before the Supreme Court, that the President’s statements on Twitter should be evaluated when looking at his actions, the fact that at least one court, and the National Archives and Records Administration, have held that his tweets are official Presidential records, will undoubtedly be celebrated by those opposed to the President’s agenda.

And that’s our show.  Thanks so much for listening.  Links to the decision and other commentary are available in the shownotes to this episode at our website, summaryjudgmentpod.com.  You can reach out by e-mail at summaryjudgmentpod@gmail.com. You can like us on Facebook.  Or you can tweet thoughts and ideas to @podcastSJ.  Please remember to rate and review the podcast.  And if you like what you heard, please recommend the podcast to a friend!  See you next time for another Summary Judgment.

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