May 23, 2018 6:29 PM

Trump Can't Block Critics on Twitter. What This Means For You

Here's how the decision impacts the future of the First Amendment online.

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On Wednesday, a federal judge ruled that President Donald Trump’s practice of blocking his critics on Twitter violates the First Amendment. The practice is unconstitutional, Judge Naomi Reice Buchwald wrote in her 75-page decision, because the @realdonaldtrump Twitter account is a public forum operated by the government, meaning viewpoint discrimination is strictly prohibited.

While the case has drawn attention for its ties to the Tweeter-in-chief, legal scholars say it has far-reaching implications, protecting all Americans' rights to communicate with elected leaders and government entities online.

“This is a really important contribution,” says Danielle Citron, a law professor at the University of Maryland and author of the book Hate Crimes in Cyberspace.

Judge Buchwald's decision explains how the case hinges on two crucial questions: Whether a public official can block people on Twitter in response to their political views without violating their First Amendment rights, and whether it matters when the person doing the blocking is the President.

“The answer to both questions is no,” Buchwald wrote. “No government official—including the President—is above the law,” she continued.

The ruling crucially distinguishes between the President’s Twitter account—which, like public parks, is under government control—and private citizens’ accounts. While ordinary Twitter users can block and follow other Twitter users they do or don’t agree with, the judge found that @realdonaldtrump is essentially a space operated by the government for government business, and therefore, cannot curb speech based on people’s viewpoints.

The suit was filed by the Knight First Amendment Institute on behalf of seven citizens who have been blocked by President Trump after speaking critically of him on Twitter. Among the plaintiffs are Philip Cohen, a professor at the University of Maryland, who was blocked for tweeting a photo at the president that called him a “corrupt incompetent authoritarian,” as well as Rebecca Buckwalter, a legal analyst blocked for sending Trump a tweet saying that Russia had won him the White House.

“We’re pleased with the court’s decision, which reflects a careful application of core First Amendment principles to government censorship on a new communications platform,” said Jameel Jaffer, the Knight Institute’s executive director in a statement. “The President’s practice of blocking critics on Twitter is pernicious and unconstitutional, and we hope this ruling will bring it to an end.”

“We respectfully disagree with the court’s decision and are considering our next steps," Department of Justice spokesperson Kerri Kupec said in a statement. The White House did not have a statement and deferred to the DOJ.

The plaintiffs accused President Trump, White House press secretary Sarah Huckabee Sanders, director of social media Dan Scavino, and former White House communications director Hope Hicks of violating their First Amendment rights by blocking their access to the “public forum” that is the President’s Twitter feed. In public forums, like parks and sidewalks, the First Amendment protects the freedom of speech, regardless of a person’s viewpoint. The plaintiffs argued that being blocked not only limits their ability to communicate with the President via Twitter, but it prevents them from participating in the lengthy reply threads that accompany Presidential tweets. Moreover, they argued they’d been blocked specifically because of their critical viewpoints.

The Department of Justice attorney Michael Baer, meanwhile, contended that @realdonaldtrump is distinct from @POTUS or @WhiteHouse, which are both linked to the office of the presidency. Because @realdonaldtrump started as a personal account on a private platform, it does not constitute a public forum, he argued.

In the end, Judge Buchwald sided with the plaintiffs, issuing a decision that is both narrow enough so as not to declare the entire internet a free speech zone and broad enough to create new protections for all Americans. The ruling largely builds on past cases, where courts have ruled that public forums are more than just physical locations.

"We went beyond sidewalks a long time ago," says David Greene, a senior staff attorney and civil liberties director at the Electronic Frontier Foundation. "It's not new at all to apply the public forum doctrine beyond real property."

Though the judge dismissed the case against both Sanders and Hicks, she found that the President and Scavino are directly responsible for controlling the account. And while @realdonaldtrump may have started out as the personal account of a private citizen on a private platform, it’s since morphed into a communication channel controlled by the President and Scavino, who use it to promote new policies, announce official decisions, and engage with foreign political leaders, among other things. It is, in other words, an interactive space under government control, and is therefore subject to the laws concerning public forums.

“He’s acting like the president on it. It’s not a personal account anymore,” Citron says.

Key to this decision, though, is its specificity. It deals specifically with @realdonaldtrump and stops short of referring to all of Twitter or social media a public forum, as other decisions have done. Last year, in a case called Packingham v. North Carolina, the Supreme Court ruled that states can’t bar their citizens from using social platforms. While the ruling was narrow, Justice Anthony Kennedy’s decision included sweeping prose that referred to social media sites as the “modern public square.”

Citron views that as oversimplifying the matter. “They’re not public. They’re private,” she says. Taken to its logical conclusion, referring to all of social media as a public square would mean that all content moderation is prohibited. Buchwald’s decision, Citron says, suggests a clearer understanding of some important nuances. It applies specifically to elected officials and government agencies, and says that as long as they’re soliciting comments from the public, they can’t pick and choose who gets to speak.

“In an age when we’re seeing so many norms broken by government regarding free speech, this is an important and right decision,” says Citron. “It sends a message that we’re not going to destroy free speech norms.”

Greene says he hopes the ruling warns other elected officials who are blocking constituents on social media to stop. "We routinely get a ton of people complaining to us about similar practices," he says. "I hope they take it as a message that you have to stop doing this." The EFF recently filed a similar lawsuit against Texas A&M University for allegedly blocking the animal-rights group PETA from commenting on its Facebook page. And the Knight Institute is now also representing a Virginia resident who was blocked from a local official's Facebook page in an appeals case.

The judge's ruling Wednesday is ultimately an important example of the court attempting to decipher how centuries-old doctrines apply to the internet. Neil Richards, a law professor at Washington University School of law, says the case is particularly important because it seeks to assess how the internet actually works in the real world. "When we’re thinking about the First Amendment, it’s important that we recognize the internet that we have in practice, rather than an idealized version of the internet that we might want to have or that Silicon Valley might sell us," he says.