“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. The answer to both questions is no.”  Thus, begins the 75 page decision of the Honorable Naomi Reice Buchwald, U.S.D.J. in Knight First Amendment Inst. at Columbia University v. Trump, No. 17-5205 (S.D.N.Y. May 23, 2018).

The court reached its decision after noting that the National Archives and Records Administration regards the President’s tweets as official records that must be preserved by statute and then finding that the President used his Twitter account to announce, describe, and defend his policies; to promote his administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations; and to announce matters related to official government business before those matters were announced through other channels.

In reaching this decision, Judge Buchwald found that blocking Twitter users merely because they criticized the President or disagreed with the President’s tweets violated the blocked users’ First Amendment rights because these users sought to engage in political speech on matters of public concern which “fall within the core of First Amendment protection.” The court was unpersuaded by the argument that Donald Trump created the Twitter account prior to becoming President because, upon taking office, he used the account for governmental functions and the content of the tweets is considered “government speech.”

Accordingly, the court declared that blocking the plaintiffs on Twitter because of their political views was impermissible under the First Amendment. The court did not enjoin the President to unblock the users; instead Judge Buchwald suggested that the President and the White House Social Media Director “remedy the blocking” held to be unconstitutional. The plaintiffs were subsequently unblocked, but whether or not Judge Buchwald’s decision will stand remains to be seen because the Department of Justice has already filed a Notice of Appeal to challenge the District Court’s ruling.

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For any questions relating to this article, please contact Robert B. Nussbaum, Esq., at Saiber, LLC.

Rob Nussbaum

Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.

For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.