The Constitutional Debate Surrounding @realDonaldTrump

By Musa Kamara (PO’22)

Before, during, and most likely after his tenure as President of the United States, Donald Trump has not hesitated and will not hesitate to make his opinions known, via his personal Twitter account @realDonaldTrump. Trump’s usage of Twitter as a president is not unusual: President Barack Obama notably utilized Twitter as a key component of his campaign strategy and as a tool throughout his presidency. Similarly, all other living presidents (Jimmy Carter, Bill Clinton, and George W. Bush) either currently operate personal accounts or run foundations or organizations with Twitter accounts. Trump’s Twitter stands out, however, as a subject of scrutiny not only because of its provocative content, but also because of its involvement in a recent lawsuit with important First Amendment implications.

In June 2017, the Knight First Amendment Institute at Columbia University—an organization which seeks to “safeguard free expression in the shifting landscape of the digital age” —filed a suit against President Trump and his communications team on the behalf of seven Twitter users. These users, all of whom had criticized President Trump or his policies, had all been ‘blocked’ on Twitter by the @realDonaldTrump account. Effectively, Trump’s account had prevented these users from following the account, accessing the account’s tweets, and interacting with the account in any way.

The Knight Institute’s suit contended a few major points, all involving the First Amendment. The suit’s first claim revolved around the First Amendment’s public forum doctrine. The public forum doctrine, established under the 1939 case Hague v. Committee for Industrial Organization, essentially holds that speakers in spaces used for political speech and debate (traditionally parks, sidewalks, and other public areas) are completely protected by the First Amendment. Seeing as these spaces are public, the government may not discriminate against speakers in these spaces simply based on their views. The Knight Institute argued that @realDonaldTrump account is a public forum, seeing as social media is widely regarded as a means of political debate and discourse. As such, the exclusion of citizens from this public forum, blocking them purely because of ideological disagreements, is unconstitutional.

The suit also argued that President Trump is violating the seven individual plaintiffs’ First Amendment right to petition their government for redress of grievances. More specifically, this facet of the Knight Institute’s argument invokes the First Amendment right to petition, the right to make the government aware of one’s complaints without fear of retribution. Seeing as the users were blocked, they were excluded from a mode of petition that was open to all others. Finally, the Knight Institute argued that by blocking users and thus altering the @realDonaldTrump public forum’s demographic composition, President Trump is violating the rights of people who have not been blocked by precluding them from engaging in a debate that fully encapsulates the diversity of opinions in the citizenry.

The oral arguments for the suit were heard before Judge Naomi R. Buchwald of the U.S. District Court for the Southern District of New York on March 8, 2018. On May 23, 2018, Buchwald released an opinion ruling that the blocking of users on Twitter was in fact unconstitutional. Buchwald’s opinion held that the @realDonaldTrump account was indeed a public forum and as a result, the blocking of users was a violation of the Constitution.

While it would appear that the Knight Institute was successful in its litigation, based on the outcome of the opinion, Buchwald’s did not issue an injunction ordering President Trump to unblock the users who had been blocked. As she explains in her opinion, “[b]ecause no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the president and [Dan] Scavino [the White House Social Media Direction] will remedy the blocking we have held to be unconstitutional.” Accordingly, on June 4, 2018, the Knight Institute received notice that President Trump had unblocked the seven users who had filed suit against him on Twitter. On the same day, however, the Knight Institute received notice that the government would be appealing the District Court’s decision to the Court of Appeals for the Second Circuit. The appeal was ultimately granted and oral arguments for the case were heard on March 26, 2019.

Justice Department officials, who have been responsible for defending President Trump’s account have presented a number of arguments, in hopes of preserving @realDonaldTrump’s status as a non-public forum. In the oral arguments on March 26, Justice Department attorney Jennifer Utrecht asserted in court that in blocking users from his personal account, President Trump was acting in private unofficial capacity. The Justice Department has extended this point further, claiming that as a personal account, @realDonaldTrump does not serve as an extension of the federal government. To that end, however, Judge. Hall responded that the case was being heard because President Trump is not a private citizen, as evidenced by his representation by the Justice Department.

The outcome of this appeal, and perhaps any possible subsequent appeals, holds implications for not only President Trump’s Twitter account and how he uses it, but also the state of social media as a whole. More particularly, the case serves as an extension of the issue of the Constitution’s general application to the Internet. Should the decision of the District Court be upheld, Twitter and other social media outlets will remain and likely grow in their capacity to connect citizens to government officials;  though public officials participate in town halls and press conferences, social media oftentimes presents as the most accessible option for citizens to interact with officials and voice their concerns. In the 2017 case Packingham v. North Carolina, the Supreme Court itself described social media platforms as “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” On the other hand, should online platforms—and specifically, accounts like @realDonaldTrump—not be ruled public forums, perhaps the Internet in general will see a much less generous helping of constitutional protections than have seemed to be the recent trend.

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