Knight First Amendment Inst. at Columbia Univ. v. Trump
U.S. Court of Appeals7/9/2019
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18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 In the
2 United States Court of Appeals
3 For the Second Circuit
4
5
6 August Term 2018
7
8 No. 18â1691âcv
9
10 KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,
11 REBECCA BUCKWALTER, PHILIP COHEN, HOLLY FIGUEROA, EUGENE
12 GU, BRANDON NEELY, JOSEPH PAPP, and NICHOLAS PAPPAS,
13
14 PlaintiffsâAppellees,
15
16 v.
17
18 DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES and DANIEL
19 SCAVINO, WHITE HOUSE DIRECTOR OF SOCIAL MEDIA AND ASSISTANT
20 TO THE PRESIDENT,
21
22 DefendantsâAppellants,
23
24 SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY,
25
26 Defendant.*
27
28
29 Appeal from the United States District Court
30 for the Southern District of New York
31 No. 17 Civ. 5205 (NRB), Naomi R. Buchwald, District Judge, Presiding.
32 (Argued: March 26, 2019; Decided: July 9, 2019)
33
34
*
The Clerk of Court is respectfully directed to amend the official caption as indicated above.
1
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Before: PARKER, HALL, and DRONEY, Circuit Judges.
2
3 Plaintiffs Buckwalter, Cohen, Figueroa, Gu, Neely, Papp, and Pappas
4 (âIndividual Plaintiffsâ) are social media users who were blocked from accessing
5 and interacting with the Twitter account of President Donald J. Trump because
6 they expressed views he disliked. The Knight First Amendment Institute at
7 Columbia University is an organization alleging a right to hear the speech that
8 the Individual Plaintiffs would have expressed had they not been blocked. The
9 Plaintiffs sued President Trump along with certain White House officials,
10 contending that the blocking violated the First Amendment. The United States
11 District Court for the Southern District of New York (Buchwald, J.) found that
12 the âinteractive spaceâ in the account is a public forum and that the exclusion
13 from that space was unconstitutional viewpoint discrimination. We agree, and,
14 accordingly, we affirm the judgment of the District Court.
15
16 AFFIRMED.
17 Jameel Jaffer (Katherine Fallow,
18 Caroline DeCell, Alexander Abdo,
19 Knight First Amendment Institute at
20 Columbia University, New York, NY,
21 Jessica Ring Amunson, Tali R.
22 Leinwand, Jenner & Block, Washington,
23 D.C., on the brief), Knight First
24 Amendment Institute at Columbia
25 University, New York, NY, for Plaintiffsâ
26 Appellees.
27
28 Jennifer Utrecht, Attorney, Appellate
29 Staff, Civil Division (Scott McIntosh,
30 Attorney, Appellate Staff, on the brief),
31 for Chad A. Readler, Acting Assistant
32 Attorney General, Hashim M.
33 Mooppan, Deputy Assistant Attorney
34 General, Washington, D.C., for
35 DefendantsâAppellants.
36
2
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 David Greene, Electronic Frontier
2 Foundation, San Francisco, CA, for
3 amicus curiae, Electronic Frontier
4 Foundation, in support of Plaintiffsâ
5 Appellees.
6
7 Amy L. Marshak, Joshua A. Geltzer,
8 Mary B. McCord, Institute for
9 Constitutional Advocacy and Protection
10 at Georgetown University Law Center,
11 Washington, D.C., for amici curiae,
12 Ashutosh Bhagwat, Erwin
13 Chemerinksy, Genevieve Lakier, Lyrissa
14 Lidsky, Helen Norton, Amanda Shanor,
15 Geoffrey R. Stone, Laurence H. Tribe,
16 and Rebecca Tushnet, in support of
17 PlaintiffsâAppellees.
18
19 Dan Backer, Political.Law PLLC,
20 Alexandria, VA, for amicus curiae,
21 CoolidgeâReagan Foundation, in support
22 of DefendantsâAppellants.
23
24 Donald B. Verrilli, Jr., Chad I. Golder,
25 Rachel G. MillerâZiegler, Munger, Tolles
26 & Olson LLP, Washington, D.C., for
27 amicus curiae, Internet Association, in
28 support of neither party.
29
30
31 BARRINGTON D. PARKER, Circuit Judge:
32 President Donald J. Trump appeals from a judgment of the United States
33 District Court for the Southern District of New York (Buchwald, J.) concluding
3
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 that he engaged in unconstitutional viewpoint discrimination by utilizing
2 Twitterâs âblockingâ function to limit certain usersâ access to his social media
3 account, which is otherwise open to the public at large, because he disagrees
4 with their speech. We hold that he engaged in such discrimination and,
5 consequently, affirm the judgment below.
6 The salient issues in this case arise from the decision of the President to use
7 a relatively new type of social media platform to conduct official business and to
8 interact with the public. We do not consider or decide whether an elected official
9 violates the Constitution by excluding persons from a wholly private social
10 media account. Nor do we consider or decide whether private social media
11 companies are bound by the First Amendment when policing their platforms.
12 We do conclude, however, that the First Amendment does not permit a public
13 official who utilizes a social media account for all manner of official purposes to
14 exclude persons from an otherwiseâopen online dialogue because they expressed
15 views with which the official disagrees.1
16 Twitter is a social media platform that allows its users to electronically
17 send messages of limited length to the public. After creating an account, a user
1
The facts in this case are not in dispute as the case was resolved below on
stipulated facts.
4
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 can post their own messages on the platform (referred to as tweeting). Users
2 may also respond to the messages of others (replying), republish the messages of
3 others (retweeting), or convey approval or acknowledgment of anotherâs
4 message by âlikingâ the message. All of a userâs tweets appear on that userâs
5 continuouslyâupdated âtimeline,â which is a convenient method of viewing and
6 interacting with that userâs tweets.
7 When one user replies to another userâs tweet, a âcomment threadâ is
8 created. When viewing a tweet, this comment thread appears below the original
9 tweet and includes both the firstâlevel replies (replies to the original tweet) and
10 secondâlevel replies (replies to the firstâlevel replies). The comment threads
11 âreflect multiple overlapping âconversationsâ among and across groups of usersâ
12 and are a âlarge partâ of what makes Twitter a ââsocialâ media platform.â Appâx
13 at 50.
14 The platform also allows users to directly interact with each other. For
15 example, User A can âmentionâ User B in User Aâs tweet, prompting a
16 notification to User B that he or she has been mentioned in a tweet. Twitter users
17 can also âfollowâ one another. If User A follows User B, then all of User Bâs
18 tweets appear in User Aâs âfeed,â which is a continuouslyâupdated display of
5
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 content mostly from accounts that User A has chosen to follow. Conversely,
2 User A can âblockâ User B. This prevents User B from seeing User Aâs timeline
3 or any of User Aâs tweets. User B, if blocked by User A, is unable to reply to,
4 retweet, or like any of User Aâs tweets. Similarly, User A will not see any of User
5 Bâs tweets and will not be notified if User B mentions User A.2 The dispute in
6 this case exclusively concerns the Presidentâs use of this blocking function. The
7 government has conceded that the account in question is not itself âindependent
8 of [Trumpâs] presidency,â but contends that the act of blocking was private
9 conduct that does not implicate the First Amendment. Oral Arg. R. at 1:00 â 1:15.
10 President Trump established his account, with the handle
11 @realDonaldTrump, (the âAccountâ) in March 2009. No one disputes that before
12 he became President the Account was a purely private one or that once he leaves
13 office the Account will presumably revert to its private status. This litigation
14 concerns what the Account is now. Since his inauguration in January 2017, he
2
All of these features are part of the platform set up by Twitter, a private
company. Use of the platform is governed by terms of service which users agree
to when they use the platform. See generally Twitter Terms of Service, Twitter,
https://twitter.com/en/tos (last visited June 6, 2019). A Twitter user cannot
choose to have an account that has a subset of these features. For example, a user
cannot obtain from Twitter an account that prohibits certain other users from
blocking them. Nor can a user obtain from Twitter an account with the ability to
disable the comment thread.
6
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 has used the Account, according to the parties, âas a channel for communicating
2 and interacting with the public about his administration.â Appâx at 54. The
3 Presidentâs tweets from the Account can be viewed by any member of the public
4 without being signed into a Twitter account. However, if a user has been
5 blocked from the Account, they cannot view the Accountâs tweets when logged
6 in to their account. At the time of the partiesâ stipulation, the Account had more
7 than 50 million followers. The Presidentâs tweets produce an extraordinarily
8 high level of public engagement, typically generating thousands of replies, some
9 of which, in turn, generate hundreds of thousands of additional replies. The
10 President has not generally sought to limit who can follow the Account, nor has
11 he sought to limit the kind of speech that users can post in reply to his tweets.
12 The public presentation of the Account and the webpage associated with it
13 bear all the trappings of an official, stateârun account. The page is registered to
14 Donald J. Trump â45th President of the United States of America, Washington
15 D.C.â Id. at 54â55. The header photographs of the Account show the President
16 engaged in the performance of his official duties such as signing executive
17 orders, delivering remarks at the White House, and meeting with the Pope,
18 heads of state, and other foreign dignitaries.
7
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 The President and multiple members of his administration have described
2 his use of the Account as official. The President has stipulated that he, with the
3 assistance of Defendant Daniel Scavino, uses the Account frequently âto
4 announce, describe, and defend his policies; to promote his Administrationâs
5 legislative agenda; to announce official decisions; to engage with foreign political
6 leaders; to publicize state visits; [and] to challenge media organizations whose
7 coverage of his Administration he believes to be unfair.â Id. at 56. In June 2017,
8 thenâWhite House Press Secretary Sean Spicer stated at a press conference that
9 President Trumpâs tweets should be considered âofficial statements by the
10 President of the United States.â Id. at 55â56. In June 2017, the White House
11 responded to a request for official White House records from the House
12 Permanent Select Committee on Intelligence by referring the Committee to a
13 statement made by the President on Twitter.
14 Moreover, the Account is one of the White Houseâs main vehicles for
15 conducting official business. The President operates the Account with the
16 assistance of defendant Daniel Scavino, the White House Director of Social
17 Media and Assistant to the President. The President and his aides have
18 characterized tweets from the Account as official statements of the President. For
8
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 example, the President used the Account to announce the nomination of
2 Christopher Wray as FBI director and to announce the administrationâs ban on
3 transgender individuals serving in the military. The President used the Account
4 to first announce that he had fired Chief of Staff Reince Priebus and replaced him
5 with General John Kelly. President Trump also used the Account to inform the
6 public about his discussions with the South Korean president concerning North
7 Koreaâs nuclear program and about his decision to sell sophisticated military
8 hardware to Japan and South Korea.
9 Finally, we note that the National Archives, the agency of government
10 responsible for maintaining the governmentâs records, has concluded that the
11 Presidentâs tweets are official records. The Presidential Records Act of 1978
12 established public ownership of the Presidentâs official records. 44 U.S.C. § 2202.
13 Under that Act, âPresidential recordsâ include documentary materials created by
14 the President âin the course of conducting activities which relate to or have an
15 effect upon the carrying out of the constitutional, statutory or other official or
16 ceremonial duties of the President.â Id. § 2201. The statute authorizes the
17 Archivist of the United States to âmaintain and preserve Presidential records on
18 behalf of the President, including records in digital or electronic form.â Id. §
9
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 2203. Accordingly, the National Archives and Records Administration has
2 advised the White House that the Presidentâs tweets are âofficial records that
3 must be preserved under the Presidential Records Act.â Appâx at 57.
4 In May and June of 2017, the President blocked each of the Individual
5 Plaintiffs (but not the Knight First Amendment Institute) from the Account. The
6 government concedes that each of them was blocked after posting replies in
7 which they criticized the President or his policies and that they were blocked as a
8 result of their criticism. The government also concedes that because they were
9 blocked they are unable to view the Presidentâs tweets, to directly reply to these
10 tweets, or to use the @realDonaldTrump webpage to view the comment threads
11 associated with the Presidentâs tweets.
12 The Individual Plaintiffs further contend that their inability to view,
13 retweet, and reply to the Presidentâs tweets limits their ability to participate with
14 other members of the public in the comment threads that appear below the
15 Presidentâs tweets. The parties agree that, without the context of the Presidentâs
16 original tweets (which the Individual Plaintiffs are unable to view when logged
17 in to their accounts), it is more difficult to follow the conversations occurring in
18 the comment threads. In addition, the parties have stipulated that as a
10
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 consequence of their having been blocked, the Individual Plaintiffs are burdened
2 in their ability to view or directly reply to the Presidentâs tweets, and to
3 participate in the comment threads associated with the Presidentâs tweets.
4 While various âworkaroundsâ exist that would allow each of the
5 Individual Plaintiffs to engage with the Account, they contend that each is
6 burdensome. For example, blocked users who wish to participate in the
7 comment thread of a blocking userâs tweet could log out of their accounts,
8 identify a firstâlevel reply to which they would like to respond, log back into
9 their accounts, locate the firstâlevel reply on the authorâs timeline, and then post
10 a message in reply. The blocked usersâ messages would appear in the comment
11 thread of the blocking userâs tweet, although the blocking user would be unable
12 to see it. Blocked users could also create a new Twitter account. Alternatively,
13 blocked users could log out of their accounts, navigate to the blocking userâs
14 timeline, take a screenshot of the blocking userâs tweet, then log back into their
15 own accounts and post that screenshot along with their own commentary.
16 In July 2017, the Individual Plaintiffs and the Knight Institute sued Donald
17 Trump, Daniel Scavino, and two other White House staff members alleging that
18 blocking them from the Account violated the First Amendment. The parties
11
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 crossâmoved below for summary judgment. The District Court granted
2 summary judgment in favor of the plaintiffs and entered a declaratory judgment
3 that âthe blocking of the individual plaintiffs from the [Account] because of their
4 expressed political views violates the First Amendment.â Knight First
5 Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 579 (S.D.N.Y.
6 2018). The District Court held that the âinteractive spaceâ associated with each
7 tweet constituted a public forum for First Amendment purposes because it was a
8 forum âin which other users may directly interact with the content of the tweets
9 by . . . replying to, retweeting or liking the tweet.â Id. at 566. The Court reasoned
10 that: (1) âthere can be no serious suggestion that the interactive space is
11 incompatible with expressive activity,â and (2) the President and his staff hold
12 the Account open, without restriction, to the public at large on a broadlyâ
13 accessible social media platform. Id. at 574â75. As to the government control
14 requirement of the public forum analysis, the court found that âthe President
15 presents the @realDonaldTrump account as being a presidential account as
16 opposed to a personal account and . . . uses the account to take actions that can
17 be taken only by the President as President.â Id. at 567. The court concluded that
18 âbecause the President and Scavino use the @realDonaldTrump account for
12
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 governmental functionsâ they exercise government control over the relevant
2 aspects of the Account, including the blocking function. Id. at 569. The court also
3 rejected the idea that speech within the interactive space on the platform is
4 government speech not subject to First Amendment restrictions, concluding that
5 âreplies to the Presidentâs tweets remain the private speech of the replying user.â
6 Id. at 572.
7 After concluding that the defendants had created a public forum in the
8 interactive space of the Account, the court concluded that, by blocking the
9 Individual Plaintiffs because of their expressed political views, the government
10 had engaged in viewpoint discrimination. Id. at 577. Finally, the court held that
11 the blocking of the Individual Plaintiffs violated the Knight Instituteâs right to
12 read the replies of the Individual Plaintiffs which they cannot post because they
13 are blocked. Id. at 563â64.3
3
The District Court concluded that all plaintiffs had standing to sue, a conclusion
the government does not challenge on this appeal and with which we agree.
After the District Court granted declaratory relief, the defendants unblocked the
Individual Plaintiffs from the Account. This does not render the case moot.
Walling v. Helmerich & Payne, 323 U.S. 37, 43 (1944) (âVoluntary discontinuance of
an alleged illegal activity does not operate to remove a case from the ambit of
judicial power.â).
13
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 This Court reviews a grant of summary judgment de novo, applying the
2 same standards that governed the district courtâs resolution of the motion.
3 Summa v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013). All questions presented
4 on this appeal, including questions of constitutional interpretation, are ones of
5 law which we review de novo. All. for Open SocĘšy IntĘšl, Inc. v. United States Agency
6 for IntĘšl Dev., 911 F.3d 104, 109 (2d Cir. 2018). Because we agree that in blocking
7 the Individual Plaintiffs the President engaged in prohibited viewpoint
8 discrimination, we affirm.
9 DISCUSSION
10 The Presidentâs primary argument in his brief is that when he blocked the
11 Individual Plaintiffs, he was exercising control over a private, personal account.
12 At oral argument, however, the government conceded that the Account is not
13 âindependent of [Trumpâs] presidency,â choosing instead to argue only that the
14 act of blocking was not state action. Oral Arg. R. at 1:00 â 1:15. The President
15 contends that the Account is exclusively a vehicle for his own speech to which
16 the Individual Plaintiffs have no right of access and to which the First
17 Amendment does not apply. Secondarily, he argues that, in any event, the
18 Account is not a public forum and that even if the Account were a public forum,
14
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 blocking the Individual Plaintiffs did not prevent them from accessing the forum.
2 The President further argues that, to the extent the Account is governmentâ
3 controlled, posts on it are government speech to which the First Amendment
4 does not apply. We are not persuaded. We conclude that the evidence of the
5 official nature of the Account is overwhelming. We also conclude that once the
6 President has chosen a platform and opened up its interactive space to millions
7 of users and participants, he may not selectively exclude those whose views he
8 disagrees with.
9 I.
10 The President concedes that he blocked the Individual Plaintiffs because
11 they posted tweets that criticized him or his policies. He also concedes that such
12 criticism is protected speech. The issue then for this Court to resolve is whether,
13 in blocking the Individual Plaintiffs from the interactive features of the Account,
14 the President acted in a governmental capacity or as a private citizen.
15 The President maintains that Twitter is a privately owned and operated
16 social media platform that he has used since 2009 to share his opinions on
17 popular culture, world affairs, and politics. Since he became President, he
18 contends, the private nature of the Account has not changed. In his view, the
15
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Account is not a space owned or controlled by the government. Rather, it is a
2 platform for his own private speech and not one for the private expression of
3 others. Because the Account is private, he argues, First Amendment issues and
4 forum analysis are not implicated. Although Twitter facilitates robust public
5 debate on the Account, the President contends that it is simply the means
6 through which he participates in a forum and not a public forum in and of itself.
7 No one disputes that the First Amendment restricts government regulation
8 of private speech but does not regulate purely private speech.4 If, in blocking,
9 the President were acting in a governmental capacity, then he may not
10 discriminate based on viewpoint among the private speech occurring in the
11 Accountâs interactive space. As noted, the government argues first that the
12 Account is the Presidentâs private property because he opened it in 2009 as a
13 personal account and he will retain personal control over the Account after his
14 presidency. However, the fact that government control over property is
15 temporary, or that the government does not âownâ the property in the sense that
4
See, e.g., Harris v. Quinn, 573 U.S. 616, 629 n.4 (2014); Loce v. Time Warner EntmĘšt
Advance/Newhouse PĘšship, 191 F.3d 256, 266 (2d Cir. 1999); see also Pleasant Grove
City, Utah v. Summum, 555 U.S. 460, 467 (2009); Hartman v. Moore, 547 U.S. 250,
256 (2006) (stating that âas a general matter the First Amendment prohibits
government officials from subjecting an individual to retaliatory actions . . . for
speaking outâ).
16
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 it holds title to the property, is not determinative of whether the property is, in
2 fact, sufficiently controlled by the government to make it a forum for First
3 Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547â52
4 (1975) (holding privatelyâowned theater leased to and operated by city was
5 public forum).5 Temporary control by the government can still be control for
6 First Amendment purposes.
7 The governmentâs contention that the Presidentâs use of the Account
8 during his presidency is private founders in the face of the uncontested evidence
9 in the record of substantial and pervasive government involvement with, and
10 control over, the Account. First, the Account is presented by the President and
11 the White House staff as belonging to, and operated by, the President. The
12 Account is registered to âDonald J. Trump, â45th President of the United States of
13 America, Washington, D.C.ââ Appâx at 54. The President has described his use
14 of the Account as âMODERN DAY PRESIDENTIAL.â Id. at 55. The White
5
See also Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S.
727, 749 (1996) (plurality opinion) (stating that âpublic forums are places that the
government has opened for use by the public as a place for expressive activityâ
(internal quotation marks omitted)); U.S. Postal Serv. v. Council of Greenburgh
Civic Associations, 453 U.S. 114, 132 (considering âquestion of whether a
particular piece of personal or real property owned or controlled by the
governmentâ is a public forum (emphasis added)).
17
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 House social media director has described the Account as a channel through
2 which âPresident Donald J. Trump . . . [c]ommunicat[es] directly with you, the
3 American people!â Id. The @WhiteHouse account, an undoubtedly official
4 Twitter account run by the government, âdirects Twitter users to âFollow for the
5 latest from @POTUS @realDonaldTrump and his Administration.â Id. Further,
6 the @POTUS account frequently republishes tweets from the Account.6 As
7 discussed earlier, according to the National Archives and Records
8 Administration, the Presidentâs tweets from the Account âare official records that
9 must be preserved under the Presidential Records Act.â Id. at 57.
10 Second, since becoming President he has used the Account on almost a
11 daily basis âas a channel for communicating and interacting with the public
12 about his administration.â Id. at 54. The President utilizes White House staff to
13 post tweets and to maintain the Account. He uses the Account to announce
14 âmatters related to official government business,â including highâlevel White
6
The President and the White House operate two other Twitter accounts:
@POTUS and @WhiteHouse. Both accounts are official government accounts.
Those accounts belong strictly to the government, in the sense that the President
and members of the White House administration will not retain control over
those accounts upon leaving office. The @POTUS account is the official account
of the U.S. President. The @WhiteHouse account is the official account for the
White House administration.
18
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 House and cabinetâlevel staff changes as well as changes to major national
2 policies. Id. at 56. He uses the Account to engage with foreign leaders and to
3 announce foreign policy decisions and initiatives. Finally, he uses the âlike,â
4 âretweet,â âreply,â and other functions of the Account to understand and to
5 evaluate the publicâs reaction to what he says and does. In sum, since he took
6 office, the President has consistently used the Account as an important tool of
7 governance and executive outreach. For these reasons, we conclude that the
8 factors pointing to the public, nonâprivate nature of the Account and its
9 interactive features are overwhelming.
10 The governmentâs response is that the President is not acting in his official
11 capacity when he blocks users because that function is available to all users, not
12 only to government officials. However, the fact that any Twitter user can block
13 another account does not mean that the President somehow becomes a private
14 person when he does so. Because the President, as we have seen, acts in an
15 official capacity when he tweets, we conclude that he acts in the same capacity
16 when he blocks those who disagree with him. Here, a public official and his
17 subordinates hold out and use a social media account open to the public as an
18 official account for conducting official business. That account has interactive
19
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 features open to the public, making public interaction a prominent feature of the
2 account. These factors mean that the account is not private. See generally
3 Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995)
4 (applying the same principles to âmetaphysicalâ forums as to those that exist in
5 âa spatial or geographic senseâ); see also Davison v. Randall, 912 F.3d 666, 680 (4th
6 Cir. 2019) (holding that a public official who used a Facebook Page as a tool of
7 her office exercised state action when banning a constituent); Robinson v. Hunt
8 Cty., Texas, 921 F.3d 440, 447 (5th Cir. 2019) (finding that a government officialâs
9 act of banning a constituent from an official government social media page was
10 unconstitutional viewpoint discrimination). Accordingly, the President excluded
11 the Individual Plaintiffs from governmentâcontrolled property when he used the
12 blocking function of the Account to exclude disfavored voices.
13 Of course, not every social media account operated by a public official is a
14 government account. Whether First Amendment concerns are triggered when a
15 public official uses his account in ways that differ from those presented on this
16 appeal will in most instances be a factâspecific inquiry. The outcome of that
17 inquiry will be informed by how the official describes and uses the account; to
18 whom features of the account are made available; and how others, including
20
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 government officials and agencies, regard and treat the account. But these are
2 concerns for other cases and other days and are ones we are not required to
3 consider or resolve on this appeal.
4 II.
5 Once it is established that the President is a government actor with respect
6 to his use of the Account, viewpoint discrimination violates the First
7 Amendment. Manhattan Community Access Corp. et al. v. Halleck et al., 587 U.S. __
8 (2019) (âWhen the government provides a forum for speech (known as a public
9 forum), the government may be constrained by the First Amendment, meaning
10 that the government ordinarily may not exclude speech or speakers from the
11 forum on the basis of viewpoint . . . .â); see also Pleasant Grove, 555 U.S. at 469â70
12 (viewpoint discrimination prohibited in traditional, designated, and limited
13 public forums); Cornelius, 473 U.S. at 806 (viewpoint discrimination prohibited in
14 nonpublic forums).
15 The government makes two responses. First, it argues that the Account is
16 not a public forum and that, even if it were a public forum, the Individual
17 Plaintiffs were not excluded from it. Second, the government argues that the
21
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Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Account, if controlled by the government, is government speech not subject to
2 First Amendment restrictions.
3 A.
4 As a general matter, social media is entitled to the same First Amendment
5 protections as other forms of media. Packingham v. North Carolina, 137 S. Ct. 1730,
6 1735â36 (2017) (holding a state statute preventing registered sex offenders from
7 accessing social media sites invalid and describing social media use as âprotected
8 First Amendment activityâ). â[W]hatever the challenges of applying the
9 Constitution to everâadvancing technology, âthe basic principles of freedom of
10 speech and the press, like the First Amendmentâs command, do not varyâ when a
11 new and different medium for communication appears.â Brown v. Entmât
12 Merchants Assân, 564 U.S. 786, 790 (2011) (quoting Joseph Burstyn, Inc. v. Wilson,
13 343 U.S. 495, 503 (1952)). A public forum, as the Supreme Court has also made
14 clear, need not be âspatial or geographicâ and âthe same principles are
15 applicableâ to a metaphysical forum. Rosenberger, 515 U.S. at 830.
16 To determine whether a public forum has been created, courts look âto the
17 policy and practice of the governmentâ as well as âthe nature of the property and
18 its compatibility with expressive activity to discern the governmentâs intent.â
22
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Cornelius, 473 U.S. at 802. Opening an instrumentality of communication âfor
2 indiscriminate use by the general publicâ creates a public forum. Perry Educ.
3 Assân v. Perry Local Educatorsâ Assân, 460 U.S. 37, 47 (1983). The Account was
4 intentionally opened for public discussion when the President, upon assuming
5 office, repeatedly used the Account as an official vehicle for governance and
6 made its interactive features accessible to the public without limitation. We hold
7 that this conduct created a public forum.
8 If the Account is a forumâpublic or otherwiseâviewpoint discrimination
9 is not permitted. Intâl Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679
10 (1992); see also Pleasant Grove, 555 U.S. at 469â70 (viewpoint discrimination
11 prohibited in traditional, designated, and limited public forums); Cornelius, 473
12 U.S. at 806 (viewpoint discrimination prohibited in nonpublic forums). A
13 blocked account is prevented from viewing any of the Presidentâs tweets,
14 replying to those tweets, retweeting them, or liking them. Replying, retweeting,
15 and liking are all expressive conduct that blocking inhibits. Replying and
16 retweeting are messages that a user broadcasts, and, as such, undeniably are
17 speech. Liking a tweet conveys approval or acknowledgment of a tweet and is
18 therefore a symbolic message with expressive content. See, e.g., W. Virginia State
23
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Bd. of Educ. v. Barnette, 319 U.S. 624, 632â33 (1943) (discussing symbols as speech).
2 Significantly, the parties agree that all of this expressive conduct is
3 communicated to the thousands of users who interact with the Account. By
4 blocking the Individual Plaintiffs and preventing them from viewing, retweeting,
5 replying to, and liking his tweets, the President excluded the Individual Plaintiffs
6 from a public forum, something the First Amendment prohibits.
7 The government does not challenge the District Courtâs conclusion that the
8 speech in which Individual Plaintiffs seek to engage is protected speech; instead,
9 it argues that blocking did not ban or burden anyoneâs speech. See Knight First
10 Amendment, 302 F. Supp. 3d at 565. Specifically, the government contends that
11 the Individual Plaintiffs were not prevented from speaking because âthe only
12 material impact that blocking has on the individual plaintiffsâ ability to express
13 themselves on Twitter is that it prevents them from speaking directly to Donald
14 Trump by replying to his tweets on the @realDonaldTrump web page.â
15 Appellants Br. at 35.
16 That assertion is not wellâgrounded in the facts presented to us. The
17 government is correct that the Individual Plaintiffs have no right to require the
18 President to listen to their speech. See Minnesota State Bd. for Cmty. Colleges v.
24
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Knight, 465 U.S. 271, 283 (1984) (a plaintiff has âno constitutional right to force
2 the government to listen to their viewsâ). However, the speech restrictions at
3 issue burden the Individual Plaintiffsâ ability to converse on Twitter with others
4 who may be speaking to or about the President.7 President Trump is only one of
5 thousands of recipients of the messages the Individual Plaintiffs seek to
6 communicate. While he is certainly not required to listen, once he opens up the
7 interactive features of his account to the public at large he is not entitled to
8 censor selected users because they express views with which he disagrees.8
9 The governmentâs reply is that the Individual Plaintiffs are not censored
10 because they can engage in various âworkaroundsâ such as creating new
7
If, for example, the President had merely prevented the Individual Plaintiffs
from sending him direct messages, his argument would have more force.
8
The government extends this argument to suggest that the Individual Plaintiffs
are claiming a right to âamplifyâ their speech by being able to reply directly to
the Presidentâs tweets. The government can choose to âamplifyâ the speech of
certain individuals without violating the rights of others by choosing to listen or
not listen. See Minnesota State Bd., 465 U.S. at 288 (stating that â[a]mplification of
the sort claimed is inherent in governmentâs freedom to choose its advisers. A
personâs right to speak is not infringed when government simply ignores that
person while listening to others.â). That is not what occurred here; the
Individual Plaintiffs were not simply ignored by the President, their ability to
speak to the rest of the public users of the Account was burdened. In any event,
the government is not permitted to âamplifyâ favored speech by banning or
burdening viewpoints with which it disagrees.
25
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 accounts, logging out to view the Presidentâs tweets, and using Twitterâs search
2 functions to find tweets about the President posted by other users with which
3 they can engage.
4 Tellingly, the government concedes that these âworkaroundsâ burden the
5 Individual Plaintiffsâ speech. See Appâx 35â36, 66. And burdens to speech as well
6 as outright bans run afoul of the First Amendment. See Sorrell v. IMS Health Inc.,
7 564 U.S. 552, 566 (2011) (stating that government âmay no more silence
8 unwanted speech by burdening its utterance than by censoring its contentâ);
9 United States v. Playboy EntmĘšt Grp., Inc., 529 U.S. 803, 812 (2000) (âThe distinction
10 between laws burdening and laws banning speech is but a matter of degree. The
11 Governmentâs contentâbased burdens must satisfy the same rigorous scrutiny as
12 its contentâbased bans.â). When the government has discriminated against a
13 speaker based on the speakerâs viewpoint, the ability to engage in other speech
14 does not cure that constitutional shortcoming. Christian Legal Soc. Chapter of the
15 Univ. of California, Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 690 (2010).
16 Similarly, the fact that the Individual Plaintiffs retain some ability to âwork
17 aroundâ the blocking does not cure the constitutional violation. Neither does the
18 fact that the Individual Plaintiffs can post messages elsewhere on Twitter.
26
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Accordingly, we hold that the President violated the First Amendment when he
2 used the blocking function to exclude the Individual Plaintiffs because of their
3 disfavored speech.
4 B.
5 Finally, the government argues that to the extent the Account is controlled
6 by the government, it is government speech. Under the government speech
7 doctrine, â[t]he Free Speech Clause does not require government to maintain
8 viewpoint neutrality when its officers and employees speakâ about
9 governmental endeavors. Matal v. Tam, 137 S. Ct. 1744, 1757 (2017). For
10 example, when the government wishes to promote a war effort, it is not required
11 by the First Amendment to also distribute messages discouraging that effort. Id.
12 at 1758; see also Pleasant Grove, 555 U.S. at 467 (âThe Free Speech Clause restricts
13 government regulation of private speech; it does not regulate government
14 speech.â).
15 It is clear that if President Trump were engaging in government speech
16 when he blocked the Individual Plaintiffs, he would not have been violating the
17 First Amendment. Everyone concedes that the Presidentâs initial tweets
18 (meaning those that he produces himself) are government speech. But this case
27
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 does not turn on the Presidentâs initial tweets; it turns on his supervision of the
2 interactive features of the Account. The government has conceded that the
3 Account âis generally accessible to the public at large without regard to political
4 affiliation or any other limiting criteria,â and the President has not attempted to
5 limit the Accountâs interactive feature to his own speech. Appâx at 55.
6 Considering the interactive features, the speech in question is that of
7 multiple individuals, not just the President or that of the government. When a
8 Twitter user posts a reply to one of the Presidentâs tweets, the message is
9 identified as coming from that user, not from the President. There is no record
10 evidence, and the government does not argue, that the President has attempted
11 to exercise any control over the messages of others, except to the extent he has
12 blocked some persons expressing viewpoints he finds distasteful. The contents of
13 retweets, replies, likes, and mentions are controlled by the user who generates
14 them and not by the President, except to the extent he attempts to do so by
15 blocking. Accordingly, while the Presidentâs tweets can accurately be described
16 as government speech, the retweets, replies, and likes of other users in response
17 to his tweets are not government speech under any formulation. The Supreme
18 Court has described the government speech doctrine as âsusceptible to
28
18â1691âcv
Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 dangerous misuse.â Matal, 137 S. Ct. at 1758. It has urged âgreat cautionâ to
2 prevent the government from âsilenc[ing] or muffl[ing] the expression of
3 disfavored viewpointsâ under the guise of the government speech doctrine. Id.
4 Extension of the doctrine in the way urged by President Trump would produce
5 precisely this result.
6 The irony in all of this is that we write at a time in the history of this nation
7 when the conduct of our government and its officials is subject to wideâopen,
8 robust debate. This debate encompasses an extraordinarily broad range of ideas
9 and viewpoints and generates a level of passion and intensity the likes of which
10 have rarely been seen. This debate, as uncomfortable and as unpleasant as it
11 frequently may be, is nonetheless a good thing. In resolving this appeal, we
12 remind the litigants and the public that if the First Amendment means anything,
13 it means that the best response to disfavored speech on matters of public concern
14 is more speech, not less.
15 CONCLUSION
16 The judgment of the District Court is AFFIRMED.
29