It’s unconstitutional for Trump to block people on Twitter

A uniquely 21st-century constitutional question received a satisfying answer today from a federal judge: President Trump cannot block people on Twitter, as it constitutes a violation of their First Amendment rights. The court also ruled he must unblock all previously blocked users. “No government official is above the law,” the judge concluded.

The question was brought as part of a suit brought by the Knight First Amendment Institute, which alleged that the official presidential Twitter feed amounts to a public forum, and that the government barring individuals from participating in it amounted to limiting their right to free speech.

After consideration, New York Southern District Judge Naomi Reice Buchwald determined that this is indeed the case:

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

The president’s side argued that Trump has his own rights, and that in this case the choice not to engage with certain people on Twitter is among them. These are both true, Judge Buchwald found, but that doesn’t mean blocking is okay.

There is nothing wrong with a government official exercising their First Amendment rights by ignoring someone. And indeed that is what the “mute” function on Twitter is equivalent to. No harm is done to either party by the president choosing not to respond, and so he is free to do so.

But to block someone both prevents that person from seeing tweets and from responding to them, preventing them from even accessing a public forum. As the decision puts it:

We reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs…

While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.

The court also examined the evidence and found that despite the Executive’s arguments that his Twitter accounts are, for various reasons, in part private and not subject to rules limiting government spaces, the president’s Twitter is definitively a public forum, meeting the criteria set out some time back by the Supreme Court.

At this point in time President Trump has by definition performed unconstitutional acts, but the court was not convinced that any serious legal remedy needs to be applied. And not because the Executive side of the case said it was monstrous of the Judicial to dare to tell it what to do:

While we find entirely unpersuasive the Government’s parade of horribles regarding the judicial interference in executive affairs presented by an injunction directing the President to comply with constitutional restrictions… declaratory relief is likely to achieve the same purpose.

By this the judge means that while the court would be legally in the clear if it issued an official order binding the Executive, but that there’s no reason to do so. Instead, merely declaring that the president has violated the rules of the Constitution should be more than enough to compel his team to take the appropriate action.

Specifically, Trump and (it is implied but not stated specifically) all public officials are to unblock any blocked users on Twitter and never hit that block button again:

No government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

No timeline is set but it’s clear that the Executive is on warning. You can read the full decision here.

“We’re pleased with the court’s decision, which reflects a careful application of core First Amendment principles to government censorship on a new communications platform,” said executive director of the Knight Institute, Jameel Jaffer, in a press release.

This also sets an interesting precedent as regarding other social networks; in fact, the Institute is currently representing a user in a similar complaint involving Facebook, but it is too early to draw any conclusions. The repercussions of this decision are likewise impossible to predict at this time, including whether and how other officials, such as senators and governors, are also bound by these rules. Legal scholars and political agents will almost certainly weigh in on the issue heavily over the coming weeks.

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