A federal district court in New York determined recently that a government official could not block individuals from his Twitter account. The case, Knight First Amendment Institute at Columbia University v. Trump, involved the United States president’s authority to block certain Twitter users from interacting directly with his account.
The court determined that the blocking of individuals from the official government account violated the individuals’ First Amendment rights. In this case, the individuals were blocked from interacting directly with the president of the United States’ Twitter account. The court found that although the account was housed with Twitter, the account itself is registered as belonging to the “45th President of the United States” and the president himself exercises control over the account and uses it not only to comment on matters of public concern but also to announce various policy initiatives.
Even though the blocked users could still see the messages of the president, they could not interact directly with the account. The court held that the speech in which the blocked users sought to engage is protected by the First Amendment and that the president exerted governmental control over certain aspects of the president’s account, including the “interactive space” of the tweets sent from the account.
According to the court, the interactive space of a government official’s Twitter account is properly characterized as a designated public forum. The viewpoint-based exclusion of users from that designated public forum is prohibited by the First Amendment and cannot be justified by the president’s personal First Amendment interests in not wanting to interact with certain constituents. Blocking an individual on Twitter, reasoned the court, is not a constitutionally valid way for the president to disengage with his constituents. The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one listener. The court concluded that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment.
While the court was sensitive to the president’s personal First Amendment rights to not engage with his constituents, he cannot exercise those rights in a way that infringes on the corresponding First Amendment rights of those who have criticized him. The First Amendment recognizes, and protects against, even the smallest harms. Thus, even though the blocked users may continue to access the content of the president’s tweets, and that they may tweet replies to earlier replies to the President’s tweets, “the blocking of the individual users has the discrete impact of preventing them from interacting directly with the President’s tweets, thereby restricting a real, albeit narrow, slice of speech. No more is needed to violate the Constitution.” The federal government has stated that it intends to appeal the ruling to the U.S. Court of Appeals for the Second Circuit.
While this decision is from outside New Jersey and does not have any precedential effect on New Jersey’s school districts, the court’s analysis of the First Amendment and its impact on the governmental use of Twitter is instructive for boards of education. Boards should be mindful that social media use by government officials should adhere to the requirements of the First Amendment. For further information, boards should contact their board attorneys or may contact the NJSBA Legal Department at (609) 278-5254.