Public Law

Public Law Journal: Summer/Fall 2019, Vol. 42, Nos. 3 & 4

Social Media and Government: What Are the New Rules of Engagement?

By Deborah Fox

Deborah Fox is a Principal at Meyers Nave and the Chair of the First Amendment Practice and the Trial & Litigation Practice.

In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint-based discrimination. In its unanimous July 9, 2019 opinion in Knight First Amendment Institute v. Donald J. Trump1, the Second Circuit affirmed the lower court in full, finding the account to be a public forum because it was opened as an "instrumentality of communication" for "indiscriminate use by the general public."

In deciding whether the President’s Twitter account constituted a public forum, the Court examined the policy, practice and intent in operating the account. The Second Circuit took note that the header photograph of the account shows the President engaged in his official duties, the President and his aides have characterized his tweets as official statements, and the President extensively uses his account to announce, describe and defend his official policies. Moreover, the interactive features of the President’s Twitter account are accessible to the public without limitation. Thus, the Second Circuit found that @realDonaldTrump was intentionally opened for public discussion as an official vehicle for governance. As the evidence of the official nature of the account was "overwhelming," the Court held that the President could not selectively exclude users from his account when they expressed views that he disliked.

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