The federal judge hearing a constitutional challenge to President Donald Trump’s exclusion of unfriendly users from his Twitter feed urged a settlement on Thursday allowing him to “mute” but not “block” commenters he doesn’t like.
“If there is a settlement that serves the interest of both parties, it may be the wiser way to go,” Manhattan U.S. District Judge Naomi Buchwald told lawyers for the Justice Department and a First Amendment foundation that sued. “No one should assume they’re definitely going to win.”
Trump’s @realDonaldTrump Twitter account has 48.7 million followers. The Knight First Amendment Institute at Columbia University filed the landmark case last year on behalf of blocked users, arguing he couldn’t ban critics from an account used to make official statements.
At Thursday’s hearing on motions by both sides to rule in their favor without a trial, Buchwald and the lawyers compared Twitter to a more traditional “public forum” — where government can’t exclude people based on their opinions, but officials are free to avoid whoever they want.
On Twitter, if Trump “blocks” someone, they are prevented from seeing and responding directly to his tweets. If he “mutes” someone, they can still receive his tweets, but he doesn’t see any response or reply they offer. Others following him, however, can see responses from muted users.
Justice Department lawyer Michael Baer argued to Buchwald that by “blocking” people who attacked him, Trump was doing little more than exercising his right to communicate only with people he wanted.
“That’s a personal decision that he has always had with regard to that account,” Baer said.
He said blocked users could still access the public replies and comments on Trump’s tweets indirectly, through others who weren’t blocked. But plaintiffs lawyer Katherine Fallow said it wrongly cut them off from presidential statements and made it much harder to access discussion threads.
“It creates all these additional barriers,” she said. “Although it’s not a total ban, it is still a significant burden. It’s blatant viewpoint discrimination.”
Buchwald kept coming back to muting as a compromise that wouldn’t give critics equal access to the president through Twitter and wouldn’t let Trump keep them completely away from his account, but would give both sides part of what they wanted.
“Isn’t the answer that he simply mutes the person he finds offensive?” she said. “ . . . He can avoid hearing them simply by muting them. The president’s desire to not see someone he doesn’t want to see can be satisfied.”
Both lawyers agreed to consider her suggestion. “I don’t think it’s a perfect solution, but it’s far less restrictive,” Fallow said.
Buchwald reserved decision.