A panel of Manhattan federal appeals judges reacted with skepticism Tuesday to Justice Department arguments that President Donald Trump should be free to block followers from his Twitter feed because it’s a personal account, not a public forum.
“It’s curious to me,” Judge Peter Hall said in one telling exchange with government lawyer Jennifer Utrecht, ”that the Department of Justice is here representing essentially a private entity.”
The remark came during a 40-minute oral argument before the Second U.S. Circuit Court of Appeals on a government appeal of last year’s ruling by Manhattan U.S. District Judge Naomi Buchwald that Trump was violating the First Amendment by blocking critics from his Twitter account.
Buchwald’s ruling came in a suit filed by Columbia University’s Knight First Amendment Institute on behalf of several blocked users who claimed Trump, whose @realDonaldTrump account has more than 50 million followers, was discriminating based on political viewpoints.
The plaintiffs in the suit, filed in 2017, included a woman who responded to a Trump tweet about winning the 2016 election by saying that “Russia won it for you,” and others who criticized his stances on immigration and the effect his health care plans would have on black lung victims.
Jameel Jaffer, the lawyer for the blocked users, said Trump turned his Twitter account into a tool of government that needed to be open to everyone by using it to make official announcements and statements of policy, and as a result needed to keep it open to everyone.
“Twitter is called a social media platform precisely because it allows people to respond,” he told the judges. “If the government had wanted a one-way channel it could have used a blog … or issued press releases.”
Utrecht said Twitter as a whole remained a public forum open to all users who could see Trump tweets and participate in discussions through back doors, but Trump established his account before he was president and should not be kept from deciding who he wanted to interact with.
“The @realDonaldTrump account has always been used as a platform for his own speech,” she added. “The plaintiffs here would like to use it to amplify their own voices … Blocking does not exclude the plaintiffs from the forum. It excludes them from replying to the president.”
She said while White House aides assist Trump in compiling his Twitter feed, he blocked each of the individuals involved in the lawsuit as a personal choice. She compared it to his right to walk away on the street from someone he doesn’t want to talk to, even though he is the president.
“He is not a regulator of a forum; he is a participant in a forum,” she told the judges. “He is participating in Twitter, not acting in a controlling way; he is choosing who he is going to engage with and have conversations with.”
The judges seemed unconvinced. Judge Christopher Droney said that in addition to being unable to respond directly to Trump, people blocked because of their political views had to use “burdensome” workarounds and back doors to see Trump’s tweets and the replies of others.
When Utrecht said it was relatively easy and not “much more burdensome,” the judge shot back, “For the First Amendment it doesn’t have to be much more burdensome if it’s burdensome at all.”
The third member of the panel, Judge Barrington Parker, also had reservations. “Isn’t this a situation where there is an open, robust … dialogue on matters of transcendent public importance,” he said. “And what the blocking does … is subtract from that discussion points of view that the president doesn’t like. Why isn’t that just a quintessential First Amendment violation?”
Although the tough questions seemed to target Utrecht, Jaffer also seemed to stumble when Parker challenged him with a question about his position that Trump couldn’t exercise any “viewpoint discrimination” among his followers.
“Could the president block anti-Semitic material from the Twitter stream, or rabidly racist material?” he asked. Jaffer said he wasn’t sure.
The judges didn’t say when they will rule.