To Tweet or not to Tweet…… or First Amendment rights when Trump blocks you on Twitter

Those of you who have been following the Presidential elections of the United States since 2016 and the subsequent policy decisions made by the US by its President, are well aware of the fact that twitter has been a huge part of the journey. Twitter has become a huge part of the political connect with people. From Hillary Clinton to Donald Trump, Twitter has been used as a powerful platform to reach out to your audience, supporters or otherwise.

President Donald Trump is changing the way leaders are perceived through social media platforms. President Trump uses Twitter as a weapon against any negative media attention he gets. Not only does he use it to deliver his opinions or tirades, but also to threaten other leaders or deliver White House decisions. Suffice it to say, the POTUS uses Twitter as an important means on communication.

Keeping this background in mind, it is very relevant for us to look at how a group of people have sued him for blocking them on his Twitter. Do they have a legitimate claim to their suit?

tRUMP-tweet

What is the case all about?

The current POTUS, Trump has always been a polarising figure, with the citizens of US reacting to him in extreme ways. One of the many things that were a constant in his life were negative feedback and criticism from those that felt cheated by the President through his many reforms. So such feedback on his actions would usually come out through retweeting and replying to his tweets. This seems common enough.

But the debacle started when Trump started recognising the “naysayers” so to speak and started blocking them on Twitter. These were usually the users who had offended him by not agreeing with his viewpoint or even mocking him. These 7 users sued President Trump with the help of Knight Institute for the First Amendment in June 2017. The case was posted for argument before U.S. District Judge Naomi Reice Buchwald in Manhattan. The prayer sought is to deem the blocking of users on Twitter as unconstitutional and seeks an injunction to unblock the users.

On what ground did they sue?

The basis for this whole suit arises from the fact that Trump blocked these Twitter users from his account. So what does blocking Twitter users entail? It means that these users, unlike other American Twitter users, will not be able to view or reply to President Trump’s tweets. This is being touted as a violation of their First Amendment rights where the President is deliberately blocking people just because he does not like what they are saying. This is known as viewpoint-based discrimination.

What exactly does the First Amendment state? It is as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The various decisions by the U.S. Supreme Court has interpreted this to mean that no government, whether federal, state or local can restrict anyone’s right to speech. Viewpoint discrimination is a type of curtailment of free speech rights afforded by the First Amendment. This has been best described by Kevin Francis O’Neill as follows:

“Viewpoint discrimination is a form of content discrimination particularly disfavored by the courts. When the government engages in content discrimination, it is restricting speech on a given subject matter. When it engages in viewpoint discrimination, it is singling out a particular opinion or perspective on that subject matter for treatment unlike that given to other viewpoints. For example, if an ordinance banned all speech on the Iraq War, it would be a content-based regulation. But if the ordinance banned only speech that criticized the war, it would be a viewpoint-based regulation.

Because the government is essentially taking sides in a debate when it engages in viewpoint discrimination, the Supreme Court has held viewpoint-based restrictions to be especially offensive to the First Amendment. Such restrictions are treated as presumptively unconstitutional.

In Rosenberger v. Rectors and Visitors of the University of Virginia (1995), the Supreme Court declared: “When the government targets not subject matter but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Viewpoint discrimination is thus an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction.”

What the Knight Institute along with the 7 users argue is that President Trump is blocking them. This essentially amounts to blocking dissenting voice against his Presidency (which is almost always bad for a democracy). Access to his tweets and opportunity to reply to them cannot be given only to those who always agree with him. It must be afforded to all American citizens on Twitter.

While President Trump has blocked many Twitter users, the status quo has changed since his election as the President. Ever since the start of his Presidency, his tweets are seen as a direct access to the working and plans of the White House to the public. And blocking them is akin to not allowing dissenters to speak in town halls or other public forums. This discriminatory blocking of opinions which do not match with President Trump’s views is argued as being in violation of the First Amendment rights of the American citizens, where free speech is seen as the cornerstone of democracy.

Is there any rebuttal to this argument?

There is. The main argument is that the official Twitter for the President is @POTUS, while for President Trump as a citizen before he was elected is @realDonaldTrump which is a private account. So the main defence is the differentiation between the categorisation of the Twitter account.

While in theory, it seems to be a valid argument, to differentiate the private and public life of the President; in reality, the circumstances are quite different. The White House, in September 2017 admitted to President Trump blocking the Twitter users. They also admitted that many of the tweets were written by White House’s social media director, Dan Scavino. The fact that a White House employee dealing with its social media outreach is partially in charge of President Trump’s Twitter account implies that it is being used officially.

Moreover, President Trump’s tweets like:

blur the line between private use and state action, thereby undermining their defence of private action.

What’s happening in the court now?

The case was heard by U.S. District Judge Naomi Reice Buchwald. After hearing the argument from both the sides, the Judge offered a simple alternative solution. This solution was to mute the persons on Twitter rather than block them. She urged towards settlement of the matter.

The final decision is yet to come. But look out for any updates to the case here!

Update!

On 23rd May, the Judge ruled that President Trump blocking people on Twitter is in violation of the First Amendment Rights of the U.S. Constitution.

She stated in her judgment as follows:

This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.

….

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First
Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.

In accordance with the judgment, the President has two options – either to appeal or unblock the users. The Department of Justice has only 60 days to file an appeal. We can only wait and watch what approach will be taken next.

 

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