AFFIRMED: President Trump Cannot Block Critics on Twitter

Donald_Trump_Official_PortraitThe June 14, 2018 post “The President May Not Block Twitter Followers Because They Disagree With Him Politically” reported how, in the decision of the District Court in Knight First Amendment Inst. at Columbia University v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), the court found that the President’s decision to block certain social media users from accessing his Twitter account was unconstitutional viewpoint discrimination. On July 9, 2019 a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit affirmed.

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Appeals Courts Consider Whether Elected Officials Can Block Critics on Social Media

Law App IconOn March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter.  (See Trending Law Blog, June 14, 2018).

Although the Second Circuit has not yet issued its decision, in a similar case, the United States Court of Appeals for the Fourth Circuit ruled on January 7, 2019 that the Chairman of the Loudoun County Board of Supervisors – an elected official – violated the First Amendment when she temporarily blocked a constituent on Facebook.  See Davidson v. Randall, No. 17-2002 (4th Cir. Jan. 7, 2019).  In the unanimous decision of the Fourth Circuit, the court held that elected officials may not block critics on social media accounts used for official business.

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Will Social Media Websites Become State Actors?

Image of censored stampIn Schulman v. Facebook.com, 2017 U.S. Dist. LEXIS 183110 (D.N.J. 2017), a federal district court in New Jersey dismissed a plaintiff’s lawsuit claiming that various media defendants censored his political speech on Facebook in violation of his constitutional rights.  The court held that “All of Plaintiff’s constitutional claims against all Defendants fail as a matter of law because Plaintiff fails to allege that Defendants are state actors” and the U.S. Constitution “only applies to governmental actors – and does not apply to private parties.”  A federal court in California reached a similar decision in Prager Univ. v. Google, LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal. 2018).

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The First Amendment and Social Media

Microphone in front of audience.The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.

The Supreme Court initially noted that “a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” With regard to social media, the Court noted that although users of websites such as Facebook, Twitter and LinkedIn “engage in a wide array of protected First Amendment activities,” the First Amendment does permit states to “enact specific, narrowly tailored laws” that could limit a person’s use of social media. However, the Court also held that a state could not enact a broad law which would “foreclose access to social media altogether” and prevent a user from engaging in “the legitimate exercise of First Amendment rights.”

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