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First Amendment Bars Trump from Blocking Critics on Twitter, Court Rules

A federal judge has ruled that the First Amendment prohibits President Donald J. Trump from blocking Twitter users because of political disagreements.

Last summer, seven individual plaintiffs—Twitter users who had been blocked from the President's account, @realDonaldTrump, after tweeting criticism about the President or his policies—together with the Knight First Amendment Institute, sued Trump and Daniel Scavino, the White House's Director of Social Media, for blocking them from reading, replying, or otherwise responding to the President's tweets. The individual plaintiffs argued that the President had unconstitutionally interfered with their ability to speak on matters of public concern, in violation of the First Amendment.

In her decision this week, District Judge Naomi Reice Buchwald ruled that the President's tweets are government speech, noting that President Trump exercises substantial control over the account and uses it to announce major government policy decisions. The court continued that, because the "interactive space" in his Twitter account permits unblocked users to read, reply, and respond to the President's tweets, it is a designated public forum. Finally, the court noted that the President did not dispute that he blocked the individual plaintiffs based on their criticism of him.

Following traditional constitutional analysis, which narrowly restricts President Trump from discriminating against speech in a public forum, the court determined that the "continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment." Although the court recognized "the President's personal First Amendment rights," it warned that "he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him."

Judge Buchwald issued a declaratory judgment in the plaintiffs' favor, but she declined to enter an injunction against the President or Mr. Scavino, explaining that while the court has that authority, "because 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."

The case is Knight First Amendment Institute at Columbia University, et al., v. Trump, et al., Southern District of New York, Case No. 17-cv-5205(NRB).

Copyright © by Ballard Spahr LLP

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About this Author

Jacquelyn Schell, Ballard Spahr Law Firm, New York, Media and Entertainment Litigation Attorney
Associate

Jacquelyn N. Schell is an associate in the firm's Litigation Department. She focuses on First Amendment litigation, representing media and non-media clients in matters including defamation, libel, right of publicity, press access, and reporters' privilege. Jacquelyn has also represented clients in commercial litigation, defended against regulatory and criminal claims, and conducted internal investigations.
Jacquelyn previously served as a Special Assistant District Attorney in the Cobb County District Attorney's Office in Georgia, where she prosecuted felony crimes...

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Charles Tobin, Ballard Spahr Law Firm, Entertainment Media Litigation Attorney
Partner

Charles D. Tobin is a litigator, former journalist, and the Co-Practice Leader of Ballard Spahr's Media and Entertainment Law Group. He defends the media in libel and privacy lawsuits in state and federal trial and appellate courts throughout the country. He conducts prepublication content review and advises clients on subpoenas, access and privilege issues, Freedom of Information Act (FOIA) requests, copyright matters, and First Amendment rights.

Mr. Tobin also represents businesses in matters involving unfair competition, disparagement, and false advertising. He helps digital media clients respond to takedown requests, develop terms of use and privacy policies, and fend off subpoenas seeking the identities of anonymous posters. In addition, he advises media clients on the developing laws regulating drone use.

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