Tweeting at Trump

The Second Circuit today issued a major First Amendment decision that should be of interest to all government entities and government officials who use social media:  in Knight First Amendment Institute at Columbia University v. Trump, the Court ruled that President Trump and his staff violated the First Amendment by blocking users from his Twitter account, simply because the users had responded to his tweets by criticizing the President or his policies.  As the Court noted:

We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees.

Given the overwhelmingly public nature of the President’s Twitter feed, the Court easily rejected arguments that the President’s tweets were only his private speech, and that by blocking users he was only acting in his private capacity.

While the Court did agree that the President’s tweets were government speech, and that “[u]nder the government speech doctrine, the Free Speech Clause does not require government to maintain viewpoint neutrality when its officers and employees speak about governmental endeavors,” it held that the case was not really about the President’s speech, but about his followers’ speech:

But this case does not turn on the President’s initial tweets; it turns on his supervision of the interactive features of the Account. The government has conceded that the Account “is generally accessible to the public at large without regard to political affiliation or any other limiting criteria,” and the President has not attempted to limit the Account’s interactive feature to his own speech.

The violation of the First Amendment, therefore, was based not on the Presidents’ own speech, but on his attempt to limit the speech of his Twitters followers with which he disagreed.  As the Court noted, “while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.”

While the interactive nature of social media is undoubtedly one of its greatest strengths, it at the same time can also be a serious weakness.  As anyone who frequents online media sites can attest, the comments posted to even innocuous articles can quickly get out of hand.  It appears a truism of the online twenty-first century that online “speakers” often seem much more vicious in their speech than most people are in face-to-face conversations.  As government entities and government officials explore the use of social media platforms like Twitter and Facebook to communicate with the public, decisions such as Knight First demonstrate that serious thought must be given in advance as to how to handle the interactive nature of the “Reply” or “Comment” features that most such platforms have.