President Donald Trump can’t have it both ways on Twitter.
That’s the decision that came out of the U.S. Court of Appeals for the 2nd Circuit, which ruled on Tuesday that Trump violated the First Amendment when he blocked critics on Twitter. That’s because his frequent use of his Twitter account for official purposes — like announcing policy changes and making hiring and firing decisions — created a “public forum,” the court found.
The unanimous ruling does not apply to purely private Twitter accounts belonging to government officials, or to social-media companies’ efforts to police their own platforms.
“[T]he First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees,” Judge Naomi Buchwald wrote in the 29-page decision.
In making the ruling, the 2nd Circuit upheld a May 2018 decision by the U.S. District Court for the Southern District of New York.
The case was brought by the Knight First Amendment Institute in 2017 on behalf of seven Twitter users who had been blocked by Trump, preventing them from seeing or interacting with his tweets, after responding to him with criticism of his policies.
“This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy,” Jameel Jaffer, the Knight Institute’s executive director, said in a statement.
A Justice Department spokesperson told BuzzFeed News that the agency is “exploring possible next steps.”
“As we argued, President Trump’s decision to block users from his personal twitter account does not violate the First Amendment,” spokesperson Kelly Laco said.
The 2nd Circuit disagreed.
The ruling comes as Trump continues to criticize the press, often labeling media outlets that aggressively cover his administration “fake news.”
“Get rid of them. Fake news is a great term, isn’t it?” Trump said during a meeting last month with President Vladimir Putin of Russia, under whose watch dozens of reporters have died under suspicious circumstances. “You don’t have this problem in Russia, but we do.”
“We also have,” Putin responded. “It’s the same.”
It’s not the first time a federal appeals court has ruled that government officials can violate the First Amendment when they block critics on social media. In January, the U.S. Court of Appeals for the 4th Circuit ruled in favor of Virginia resident Brian Davison after Loudoun County Board of Supervisors Chair Phyllis Randall briefly blocked him from commenting on her Facebook page.
In that case, as in the case of Trump’s Twitter account, the court ruled that Randall’s Facebook page had “the hallmarks of a public forum” from which she could not ban particular viewpoints.
“Randall’s decision to ban Davison because of his allegation of governmental corruption constitutes black-letter viewpoint discrimination,” the 4th Circuit found in that case.
While there’s no word yet on how the Justice Department will respond to Tuesday’s ruling, a concurring opinion in the 4th Circuit case suggested that questions about how the First Amendment applies to social media platforms could be bound for the Supreme Court.
“[T]he Supreme Court should consider further the reach of the First Amendment in the context of social media,” Judge Barbara Keenan wrote.