The U.S. Court of Appeals for the 2nd Circuit denied the White House’s request for en banc review of a ruling that Donald Trump violated the First Amendment by blocking critics of the president on Twitter.
The Trump administration had appealed for a review of the unanimous three-judge ruling by the 2nd Circuit in July 2019 finding that Trump’s @realDonaldTrump Twitter account constitutes a “public forum” under the U.S. Constitution’s First Amendment.
That upheld a 2018 U.S. District Court judge’s ruling that Trump’s blocking of individual accounts on Twitter was unconstitutional, rejecting the argument from the president’s lawyers that Trump’s own First Amendment rights would be abridged if he was disallowed from blocking users. The district court ordered Trump to unblock the plaintiffs’ accounts on Twitter, and barred him from blocking speakers on the basis of political views.
Regarding the 2nd Circuit’s rejection Monday of the request for a rehearing, two dissenting circuit court judges contended that Trump’s use of his personal @realDonaldTrump to conduct official business does not amount to state action. But U.S. Circuit Judge Barrington D. Parker, in a statement, wrote that “This argument is refuted by even a cursory perusal of examples of the tweets in question.”
Parker cited Trump posts on Twitter in January 2020 about Iran as illustrating the fact that @realDonaldTrump is used as an official communications channel. “These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner. Such legal notice is not required, but is given nevertheless!” Trump tweeted from his personal account on Jan. 5.
The dissenting opinion “misconstrues the applicable law and overstates the scope of the panel’s holding,” Parker wrote in part. “The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.”
The lawsuit against Trump was filed in 2017 by Columbia University’s Knight First Amendment Institute and seven individuals who said Trump blocked them from the @realDonaldTrump account after they criticized him in comments.
“We’re pleased that the full appeals court will leave the panel’s original ruling in place,” Jameel Jaffer, the Knight Institute’s executive director, who argued the case before the 2nd Circuit, said in a statement. “The ruling is an important affirmation of core First Amendment principles as applied to new communications technology.”
The 2nd Circuit’s order denying the Trump administration’s en banc petition is at this link.
The lawsuit also named White House social-media director Daniel Scavino and former Trump press secretary Sarah Huckabee Sanders as defendants.